Petition for Writ of Certiorari — O'Neal v. Judicial Qualification Commission
Supreme Court brief1995
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Supreme Court, u.S.
FILED
95 18 JUN 28 1995
re
we me LE
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
LINDA O'NEAL,
Petitioner,
V.
JUDICIAL QUALIFICATION COMMISSION
OF GEORGIA
Respondents,
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF GEORGIA
PETITION FOR WRIT OF CERTIORARI >
Linda O'Neal
Petitioner, pro se
Route 1, Box 478
Fort Valley, Georgia 31030
(912) 825-1678
i
QUESTIONS PRESENTED
1. Whether an elected judge in light of the First
Amendment to the United States Constitution as applicable to
the states through the Fourteenth Amendment can be
disciplined and removed from office based wholly or in part
on her making a truthful public statement on a matter to
which she is a party?
2. | Whether an elected judge in light of the Fifth
Amendment to the United States Constitution as applicable to
the states through the Fourteenth Amendment can be
disciplined and removed from office based wholly or in part
on her refusal to acknowledge that any specific action taken
by her was improper and her refusal to accept personal
responsibility for the difficulties she experienced with other
elected officials?
3. | Whether an elected judge in light of the Fifth
Amendment to the United States Constitution as applicable to
the states through the Fourteenth Amendment can be
disciplined and removed from office if her lawyer is not
accorded a reasonable period of time exceeding two days in
which to prepare a defense for a disciplinary proceeding
before the Judicial Qualification Commission that involves a
voluminous amount of evidence?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED i
TABLE OF AUTHORITIES iv
OPINIONS BELOW ]
JURISDICTION 2
CONSTITUTIONAL PROVISIONS INVOLVED 3
STATEMENT OF THE CASE 5
REASONS FOR GRANTING THE WRIT 5
19
I. This case raises issues of exceptional legal
importance for judges who express public
opinion about social, political, or
governmental matters.
A. The Supreme Court of Georgia violated a
judge's right to freedom of expression in |
contravention of the First Amendment to the |
United States Constitution by removing her |
from office for making a truthful public )
statement about her difficulties with other |
elected county officials, who had violated the
law and failed in the performance of their :
statutory duties. ‘
22
II. This case raises a novel issue of great legal
significance for judges who are called before
judicial disciplinary bodies on charges of
misconduct.
A. The Supreme Court of Georgia violated a
judge's due process rights in contravention of
the Fifth Amendment to the United States
Constitution by removing her from office for
refusing to acknowledge that any specific
en os
atacand)
Il.
ili
action she had taken was improper and for
refusing to accept personal responsibility for
the difficulties she experienced with the other
elected officials of Peach County, who had
violated the law and failed in the performance
of their statutory duties.
This case raises the issue of adequacy of legal
counsel for judges called before judicial
disciplinary bodies on charges of misconduct.
A. The Supreme Court of Georgia violated a
judge's due process rights in contravention of
the Fifth Amendment to the United States
Constitution by removing her from office
while the hearing record relied upon for the
removal determination showed that she was
denied adequate legal counsel at the hearing.
CONCLUSION
APPENDIX
l. Supreme Court of Georgia
Decision
ya Judicial Qualification Commission
of Georgia, Decision
3. Supreme Court of Georgia
Order Denying Reconsideration
4. Supreme Court of Georgia
Motion for Reconsideration
5. Supreme Court of Georgia
Brief in Support of Motion
6. Supreme Court of Georgia
Petition and Supporting Brief
In Objection to JQC Findings
y A Magistrate Judge Issues Statement
24
26
iv
TABLE OF AUTHORITIES
Cases
Pages
Scott v. Flowers, et al., 910 F.2d 201 (Sth Cir. 1990). 20, 21
Inquiry Concerning A Judge No. 93-62,
RE: P. Kevin Davey, Supreme Court of Florida (1994). 23
Inquiry Concerning A Judge No. 93-62,
RE: P. Kevin Davey, Supreme Court of Florida (1994). 24
Constitutional Provisions
United States Constitution
First Amendment
Fifth Amendment
Fourteenth Amendment
28 U.S.C. §1257
Official Code Of Georgia,
OCGA § 16-10-97
OCGA § 15-10-100
OCGA § 15-10-102
OCGA § 15-10-23(b)
Georgia Judicial Code of Conduct
Canons
]
2A
2B
3 B(4)
3 E(1)
2, 19
2, 22, 23, 24, 26
2
a ey
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
LINDA O'NEAL,
Petitioner,
V.
JUDICIAL QUALIFICATION COMMISSION
OF GEORGIA
Respondents,
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF GEORGIA
PETITION FOR WRIT OF CERTIORARI
The Petitioner, Linda O'Neal, appearing pro se, respectfully
prays that a writ of certiorari issue to review the judgment of
the Supreme Court of Georgia, which ordered her removal
from office as the elected Chief Magistrate of Peach County,
Georgia.
OPINIONS BELOW
The Order of the Supreme Court of Georgia denying
the Motion for reconsideration is not reported and is
appended hereto at A31. The decision by the Supreme Court
of Georgia is reported at 454 S.E.2d 780 (Ga. 1995) and is
appended at Al. The Findings and Recommendations of the
2
Judicial Qualifications Commission are not reported and are
appended at Al2.
JURISDICTION
The decision of the Supreme Court of Georgia was
entered on March 17, 1995. Petitioner's Motion for
Reconsideration, which was timely filed, was denied by the
Supreme Court of Georgia on March 30, 1995. This Court
has jurisdiction to review the judgment of the Supreme Court
of Georgia by Writ of Certiorari pursuant to 28 U.S.C. §
1257.
CONSTITUTIONAL PROVISIONS INVOLVED
1. The First Amendment to the United States
Constitution provides:
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the
people peaceably to assemble, and to petition
the Government for a redress of grievances.
2. The Fifth Amendment to the United States
Constitution provides:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any
person be subject for the same offense to be
3
twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a
witness against himself, nor be deprived of
life, liberty, or property, without due process
of law; nor shall private property be taken for
public use, without just compensation.
3. The Fourteenth Amendment to the United States
Constitution provides in pertinent part:
SECTION 1. All persons born or naturalized
in the United States, and subject to the
jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws...
STATEMENT OF THE CASE
1. Preliminary Statement
Judge Linda O'Neal, Chief Magistrate of Peach
County Georgia, believing that the five members of the Peach
County Board of Commissioners had attempted to unlawfully
intimidate her and her court with respect to a pending matter,
in violation of a Georgia criminal statute, OCGA § 16-10-97,
obtained felony warrants for their arrest.’ Almost
: OCGA § 16-10-97 Intimidation or obstruction of jurors or court
officers.
4
immediately following the commissioners’ arrest fifteen
citizens filed complaints with the Judicial Qualification
Commission (hereinafter JQC).?_ None of the complaints
alleged incapacity, corruption, neglect of office, or a
continuing pattern of misconduct. In sum, they were
essentially politically motivated non-specific gripes
emanating from the publicized arrest of the commissioners.
The JQC initially "instructed" O'Neal to meet with its
members on January 28, 1994. Al3. She met with the JQC
"as directed"» Al3. Following the meeting the JQC
conducted an investigation and subsequently filed formal —
charges against O'Neal. A hearing was held on September 29
and 30, 1994.
O'Neal, as evidenced by the record, committed no
crime, breached no tenant of public trust or principle of
morality, professional ‘manners, courtesy, or judicial
temperament. Instead, "she sought to have done nothing
more than was provided for under law". Yet, on the basis of
an extremely erroneous and prejudicial hearing record, the
A person who by threat or force or by any threatening letter or communication:
(1) Endeavors to intimidate or impede any grand juror or petit juror or_any officer
in or of any court of this state or any court of any county or municipality of this
state or any officer who may be serving at any proceeding in any such court while
in the discharge of such juror's or officer's duties... shall, upon conviction thereof,
be punished by a fine of not more than $5,000.00 or by imprisonment for not
more than five years, or both. (emphasis added).
” Over half of the persons who complained to the JQC attend the same
church that two of the Board of commissioners attend. Several are former
co-workers of the same two commissioners. And nearly all are related by blood,
marriage, or business activity to members of the Peach County Board of
Commissions.
: At the meeting O'Neal "denied the allegations made against her, both
orally and in writing; and stated unequivocally that she had at all times adhered to
the highest standards of judicial conduct". A13.
Benham, P.J., Presiding Justice of the Supreme Court of Georgia,
dissenting with respect to the majority opinion in this case. A8
5
Judicial Qualification Commission on December 12, 1994,
recommended to the Supreme Court of Georgia that O'Neal
be removed from office. A12. O'Neal timely filed in the
Supreme Court of Georgia a Petition and Supporting Brief in
Objection to the JQC's Findings and Recommendations. The
Supreme Court of Georgia in a five to one opinion dated
March 17, 1995, held that she had violated the Code of
Judicial Conduct and ordered that she be removed from
office.* Al Presiding Justice Benham, P.J., sharply criticized
the majority's opinion and dissented on freedom of expression
grounds and the inappropriateness of considering O'Neal's
refusal to accept personal responsibility for the difficulties
she experienced with other elected officials of Peach County
in determining that she is unfit to hold judicial office. A8
O'Neal filed a timely Motion for Reconsideration, which was
denied by the Supreme Court of Georgia in an order dated
March 30, 1995. A31
2. Statement of Facts
Linda O'Neal , who had never ran for political office
before, in a contested election, unseated a sixteen year
incumbent for the office of Chief Magistrate of Peach
County, Georgia. Her term of office began January 1, 1993.
The record in this case shows that hostile reaction to her
political upset was present from the moment she took office.
Immediately upon assuming her duties she discovered that
much of the court's office equipment, supplies, files, financial
records and bank statements were missing, most of which
were never returned by her predecessor. Besides taking over
a looted court she faced uncooperative behavior by the sheriff
and the appointed clerk of the County Board of
Commissioners.* ”*’ Notwithstanding the problems with the
’ See the specific canons cited infra note 28.
. Her written requests to the County Board of Commissioners for
6
Board's clerk or the Board's failure to provide the court with
necessary supplies and equipment," the relationship between
O'Neal and the individual members of the Board of
Commissioner's remained friendly for the first eight months
of her term in office .
Meanwhile the sheriff arbitrarily refused for three
months to provide O'Neal with the alarm code to the
courthouse, thus frustrating her attempt to fulfill her statutory
duties to provide night and weekend bond and commitment
hearings, and other essential court services. Further, the
sheriff and his deputies grossly failed, on virtually a daily
basis, to provide the magistrate court with duties required by
statute,"' and many of the duties that were undertaken were
improperly performed. Finally, greatly concerned about the
magistrate court's administration of justice, O'Neal researched
Georgia case law for guidance with respect to the sheriff and
his deputies’ non-performance and improper performance of
required court related duties. Finding no cases on point she
essential office equipment and supplies, such as pens, pencils, stationary, and
chairs were often either totally ignored or were fulfilled months later. A57.
. The equipment and supplies that were eventually provided were often
inadequate for the magistrate court to properly function. A57.
: The situation was so serious that O'Neal had to frequently spend her
own personal money to purchase essential supplies needed for the proper
functioning of the court. AS58.
: O'Neal repeatedly requested budget information needed for proper court
administration from the Board's clerk, but the information was never provided.
AS7.
” Georgia Statute, OCGA 15-10-5, states: "The county governing
authority shall provide suitable offices and courtrooms for the use of the
magistrate court and shall supply all fixtures, supplies, and equipment necessary
for the proper functioning of the magistrate court."
as See infra note 13.
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7
turned to the Georgia Constitution, Statutes, Court Rules and
Code of Judicial Conduct, and found what appeared to be
authority for her issuance of orders to the court's officers to
compel performance of their court related duties.” In reliance
on this apparent authority she issued four separate orders to
the sheriff and his individual deputies on September 13, 1993.
Altogether, the orders instructed the sheriff and his deputies
to comply with the provisions of OCGA § 15-10-100(b),
which requires a sheriff to perform the duties of constables if
the county governing authority has not provided for the
” Georgia Constitution Art. VI, Section I, Para. IV, states:
Each court may exercise such powers as necessary in aid of its
jurisdiction or to protect or effectuate its judgments; but only the superior and
appellate courts shall have the power to issue process in the nature of mandamus,
prohibition, specific performance, quo warranto, and injunction. Each superior
court, state court, and other courts of record may grant new trials on legal
grounds.
Georgia Statute, OCGA § 15-1-3 states, "every court has power":
(1) To preserve and enforce order in its immediate presence and, as near
thereto as is necessary, to prevent interruption, disturbance, or hindrance to its
proceedings;
(2) To enforce order before a person or body empowered to conduct a
judicial investigation under its authority;
(3) To compel obedience to its judgments, orders, and process and to
the orders of a judge out of court in an action or proceeding therein;
(4) To control, in the furtherance of justice, the conduct of its officers
and ‘all other persons connected with a judicial proceeding before it, in every
matter appertaining thereto;
(5) To administer oaths in an action or proceeding pending therein and
in all other cases when it may be necessary in the exercise of its powers and
duties;
(6) To amend and control its processes and orders, so as to make them
conformable to law and justice, and to amend its own records, so as to make them
conform to the truth; and
(7) To correct its own proceedings before final judgment.
Canon 3C(2) of the Judicial Code of Conduct states:
Judges shall require* their staffs, court officials and others subject to
their direction and control to observe the standards of fidelity and diligence that
apply to the judges and to refrain from manifesting bias or prejudice in the
performance of their official duties.
8
appointment of constables by the chief magistrate, and
OCGA § 15-10-102, which sets forth the powers and duties
of constables.” O'Neal sent the orders to chief deputy Deese.
Initially, deputy Deese told O'Neal that he was serving the
orders, but in fact he was not serving the orders. At the JQC
hearing he admitted under oath that he had lied to O'Neal.
When later he refused to serve the orders, O'Neal, pursuant to
statutory law, issued an order to the coroner to serve the
orders on the sheriff." According to O'Neal's uncontradicted
testimony the coroner after picking up the orders from the
magistrate court shortly returned and shoved the orders into
her hand and stated, "1 am not going to serve that" and "I am
not serving anything you say, I don't have to". He then
"stormed" out of the court's offices.'* The coroner also
se Georgia Statute, OCGA § 15-10-100, titled Appointment of constables;
compensation; chief constable, states in part: "(a) Unless otherwise provided by
local law, the county governing authority may provide for the appointment of
constables by the chief magistrate. Constables so appointed shall serve at the
pleasure of the chief magistrate. The compensation of constables so appointed
- be fixed by the omy governing a (b) ra pe me ae
pr pore roy ° (emphasis added).
Georgia Statute, OCGA § 15-10-102, sets forth the powers and duties of
constables as follows:
(1) To attend regularly all sessions of magistrate court;
(2) To pay promptly over money collected by them to the magistrate court;
(3) To execute and return all warrants, summonses, executions, and other
processes directed to them by the magistrate court; and
(4) To perform such other duties as are required of them by law or as
necessarily appertain to their offices.
- OCGA § 45-16-8 states: If any person makes an affidavit stating (1)
that a sheriff is disqualified from acting in any proceeding, which disqualification
was not —* at the outset of the oe or (2) Prenpmery oom re re
The clerk 1 may > aed dos thal to vacant asin an aes ptanaie ty te Gite
office in order to allow for execution by the coroner. (emphasis added).
1. Judicial Qualification Commission formal hearing transcript at p. 339.
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9
handed O'Neal a one sentence letter which stated that he was
not authorized to serve the orders, which provided no
explanation and cited no authority for such statement.'*
Following these refusals to serve the orders O'Neal
issued a Rule Nisi to determine whether Deese should be held
in civil contempt and a Rule Nisi for criminal contempt
against the coroner. At Deese's civil contempt hearing
attended by the sheriff and most of his deputies, O'Neal, after
verbally issuing the orders to the deputies, purged Deese of
contempt. On September 24, 1993, after meeting with the
sheriff in an attempt to resolve some of the problems, O'Neal
issued an indefinite stay with regard to the coroner's hearing.
Approximately an hour later, the Board of
Commissioners, at a called meeting in front of newspaper and
television reporters, read a letter to O'Neal in which they
stated,
The last straw was your recent group of
memos to Sheriff Becham where you ordered
him to do certain things. If you have a
problem with the Sheriff, it is your
responsibility to get with him and work out
whatever the situation requires- and not tu just
serve papers on him. In addition, you have
brought contempt charges against his deputy
and against the County Coroner. This is not
the way to establish a good working
relationship with people...
* The coroner's letter stated, " As Peach County Coroner, I am not
authorized to serve these Orders.”
10
We have decided to give you 30 days to see if
you can get your act together. If you continue
with your present attitude, causing problems
and conflict in the county government, we will
have no choice but to recind [sic] your salary
increase and return you to the original salary
granted to you by the previous commissioners.
O'Neal testified at the JQC hearing that she was
intimidated by the Board's letter. In response to the threat she
obtained felony warrants two months later from a neutral and
detached magistrate judge located in a distant county. The
judge who issued the warrants testified on deposition that he
made an independent determination that there was probable
cause to believe that the commissioners had violated OCGA §
16-10-97." O'Neal delivered the warrants to the sheriff seven
days later."* The commissioner's were then arrested and
immediately released on bond.
An appointed special prosecutor dismissed the
warrants approximately two months later."” Shortly thereafter
O'Neal issued a public statement with respect to the
dismissal, which also summarized her problems with the
sheriff and the board of commissioners. A91.
17
See statute cited supra note 1.
ws The issuing magistrate called O'Neal on December 22, 1994, the day
after issuing the warrants and requested that she verify with the Georgia Attorney
General the proper county name to appear on the warrants. She was able to verify
the proper county name the afternoon of December 23, 1994. The next day was
Christmas Eve so she kept the warrants over the Christmas holidays until the next
regular business day, December 28, 1994.
7 The District Attorney of a neighboring county was appointed special
prosecutor by a Peach County Superior Court Judge. He dismissed the warrants
on the grounds of insufficient evidence.
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Within a few days following the commissioners’ arrest
a group of fifteen citizens, including the Board of
Commissioners, filed similar complaints with the JQC, which
expressed concern over O'Neal's actions.”
3. The JOC Inquiry
Prompted by the complaints, the JQC initially "instructed"
O'Neal to meet with its members on January 28, 1994. A13.
Appearing without counsel, she met with the JOC "as
directed"." A13. At the meeting O'Neal, unexpectedly,
experienced a highly charged atmosphere of bias against her,
which later led to a motion for recusal of three JQC
members.” Thereafter, the JQC conducted an investigation
and subsequently filed formal charges against O'Neal. A
hearing was held on September 29 and 30, 1994.
Prior to the hearing two preliminary motions were
presented to the JQC, a motion for continuance and a motion
for recusal of three members of the JQC. Both were denied.
A continuance was necessary because O'Neal's initial attorney
was caught in the midst of a criminal trial, a death penalty
case from which he could not absent himself. The same
problem caused O'Neal to suffer inadequate representation at
the pretrial conference two days earlier. O'Neal was notified
on September 26, 1994, that she needed to find substitute
counsel for the pretrial conference scheduled for September
27, 1994. With less than twenty four hours notice her
See supra note 2.
7 See supra note 3.
™ Judge Hugh Lawson, who later acted as presiding hea*ing officer at the
JQC hearing told O'Neal during the meeting, without being specific, that she was
guilty of judicial intimidation, an allegation which later became part of the formal
charges.
12
substituted counsel appeared at the pretrial conference. The
quantum of evidence in the case made it impossible for him
on such short notice to become adequately familiar with all of
it or to meaningfully discuss the case with O'Neal.” Thus, at
the hearing when the defense presented its case, favorable
evidence was denied admission because notice of it had not
been given at the pretrial conference.“ Moreover, his lack of
knowledge about the case caused him to be unaware of the
recusal issues.
Her original attorney still in trial, O'Neal appeared at
the JQC hearing on September 29, 1994, with her substitute
counsel. Her attorney advised the JQC at the beginning of
the hearing that his short exposure to the case caused him to
believe that he would be ineffective and not be able to
adequately represent O'Neal without being given adequate
time to prepare. Nonetheless, counsel's motion for a
continuance was denied and O'Neal was forced to proceed
with ineffective counsel.”
ad There were hundreds of pages of documents and over 450 deposition
transcript pages involved in the matter, which were ultimately admitted into
evidence.
- e.g., at the JOC hearing O'Neal attempted to admit evidence of positive
community support for her as Chief Magistrate Judge of Peach County. Over
eighty individuals either wrote letters, signed petitions, or completed favorable
court questionnaires, which significantly countered the allegations of negative
publicity in the fifteen JOC complaints filed against O'Neal.
™ O'Neal's substitute counsel's oral motion for continuance included
statements such as, "I do not feel like 1 am adequately prepared to represent Judge
O'Neal... think that I would not be able to adequately represent Judge O'Neal in
spite of my humanly, over humanly effort over the past two days to become
familiar with these documents. As you are aware, there are, I believe, ten or more
depositions taken in this case. There are literally hundreds, hundreds, I think we
are into the hundreds of exhibits at this point, thousands of pages of documents...1
feel that I would be ineffective." JQC Formal Hearing Transcript. p. 11-17.
= The JQC offered to continue the hearing if O’Neal would take a leave of
absence from her office during the continuance. Such a coercive offer was not
acceptable to O’Neal and she declined the offer.
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13
Following the hearing the JQC issued its findings and
recommendations. It found that O'Neal had violated four
provisions of the Code of Judicial Conduct, and
recommended that she be removed from office. A3.
O'Neal timely filed in the Supreme Court of Georgia a
Petition and Supporting Brief in Objection to the JQC's
Findings and Recommendations. A53. The JQC filed no
response to her petition. In her petition, O'Neal objected to
the JQC's findings and recommendations with respect to each
and every charge on the grounds that they grossly misstated
the facts and recklessly misrepresented the truth.” A53.
Additionally, she challenged the fairness of the hearing and
the lack of due process accorded her during the proceeding.
A54.
4. Decision of the Supreme Court of Georgia
A. Majority Opinion
The Supreme Court of Georgia in a five to one
opinion dated March 17, 1995, held that she had violated
Canons 1, 2 A and B, 3 B (4), and 3 E (1) of the Code of
Judicial Conduct and ordered that she be removed from
office.“ The court characterized the orders she issued to the
” Extremely venomous language was used throughout the JQC's e written
findings and recommendations, which grossly overstated and misstated the facts
and Petitioner's conduct.
” CANON |. An independent and honorable judiciary is indispensable to
justice in our society. Judges shall participate in establishing, maintaining, and
enforcing high standards of conduct so that the integrity and independence of the
judiciary may be preserved. The provisions of this Code should be construed and
applied to further that objective.
CANON 2A. Judges shall respect and comply with the law* and shall
act at all times in a manner that promotes public confidence in the integrity and
14
sheriff and his deputies as being in the nature of mandamus,
and then discussed the inability of a magistrate court to issue
writs of mandamus. It concluded by saying,
We thus find O'Neal exceeded the authority
vested in the magistrate court in issuing orders
to require court officers to comply with their
statutorily imposed duties.
AS.
impartiality of the judiciary.
CANON 2B. Judges shall not allow their family, social, political or
other relationships to influence their judicial conduct or judgment. Judges shall
not lend the prestige of judicial office to advance the private interests of the judge
or others; nor should they convey or permit others to convey the impression that
they are in a special position to influence them. Judges should not testify
voluntarily as a character witness.
CANON 3B. Adjudicative Responsibilities. (4) Judges shall be
patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others
with whom they deal in their official capacity, and shall require* similar conduct
of lawyers, and of staff, court officials, and others subject to their direction and
control.
CANON 3E(1). Judges shall disqualify themselves in any proceeding
in which their impartiality might reasonably be questioned, including but not
limited to instances where: (a) the judge has a personal bias or prejudice
concerning a party or a party's lawyer, or personal knowledge* of disputed
evidentiary facts concerning the proceeding; (b) the judge served as a lawyer in
the matter in controversy, or a lawyer with whom the judge previously practiced
law served during such association as a lawyer concerning the matter, or the judge
has been a material witness concerning it; (c) the judge or the judge's spouse, or a
person within the third degree of relationship* to either of them, or the spouse of
such a person, or any other member of the judge's family residing in the judge's
household*: ( i) is a party to the proceeding, or an officer, director, or trustee of a
party; (ii) is acting as a lawyer in the proceeding; (iii) is known* by the judge to
have a more than de minimis* interest that could be substantially affected by the
proceeding; (iv) is to the judge's knowledge* likely to be a material witness in the
proceeding.
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15
With respect to O'Neal conducting deputy Deese's
contempt hearing, the court opined that "another judge was
required to hold the contempt hearing". A6. The court relied
on the JQC "factual finding" that O'Neal took the above
described "actions in order to intimidate and coerce the
sheriff and his deputies".”? A6.
With regard to this finding the court stated,
Use of the power of the judicial office to issue
orders and to exercise its contempt power in
order to intimidate and coerce other elected
officials violates Canons 2A, 2B, and 3E(1)
and demonstrates wilful [sic] misconduct in
office.
Aé.
Although the court noted the commissioner's statement that it
would reduce O'Neal's "salary was contrary to the express
language of OCGA § 15-10-23(b)",” it determined that,
- In the motion for reconsideration O'Neal stated the following objection
to this finding: O'Neal was never charged with intimidation and coercing or
attempting to intimidate and coerce the sheriff and his deputies and thus she was
never given an opportunity to defend against that specific accusation, in violation
of her due process rights as guaranteed by the Fifth Amendment to the U. S.
Constitution as applicable to the states through the Fourteenth Amendment. She
respectfully submits to this Court that it is now unfair to use such a finding to
determine that she committed willful misconduct in office and thereby violated
Canons 2A, 2B, and 3E(1). Notwithstanding this argument, the record contradicts
the JQC finding and instead shows that the sheriff and his deputies were not
intimidated by the orders and Deese's Rule Nisi Hearing. Deese testified at the
JQC hearing that he told the JQC investigator that he thought the problems with
the Magistrate Court were minor in nature. [FHT p. 205]. Deese admitted under
oath at the JQC hearing, a year after they were issued, that none of the orders had
been served [FHT p. 194, 204]; and the documentary exhibits of O'Neal's
correspondence and her testimony shows that the sheriff and his deputies still do
not properly perform their duties with respect to the Court. A43.
The statute provides that no "magistrate's compensation or supplement
shall be decreased during any term of office". A6.
16
obtaining felony warrants for the entire board
based upon a clearly unenforceable threat®* »*
* issued in the midst of a political squabble
was not an appropriate or judicious response
by O'Neal.*
Aé.
The court found that O'Neal's obtaining of the arrest
warrants and then her public statement” after they were
dismissed was conduct that violated Canons 1, 2 A, 2 B, and
3 B (4) and was prejudicial to the administration of justice
and undermines public confidence in the impartial
functioning of judicial officers. A6.
Lastly, the court focused on O'Neal's refusai to
"acknowledge that any specific action was improper" and the
= O'Neal testified at the JQC hearing that she was intimidated by the
Board's letter. See supra p. 10.
- Apparently the court did not agree with O'Neal's assertions in her
petition, which argued that the plain language of OCGA 16-10-97 included
"attempted intimidation" within its meaning, and that once the threat was made
and the intimidation attempted the threat did not have to be carried out for a
crime to have occurred. A6.
- In her motion for reconsideration O'Neal advised the court that she did
not obtain felony warrants for the entire board of commissioners based upon "a
clearly unenforceable threat," as proven by the fact that the board carried out the
threat and reduced her salary after the JQC hearing had occurred, the closing
arguments had been submitted, and the hearing record was established. A33.
” As O'Neal pointed out in her motion for reconsideration, at the time the
threat was communicated to O'Neal there was no political squabble existing
between the commissioners and O'Neal. A44.
7 The statement was factually accurate and completely true, as supported
by the record, and is included in the appendix to this petition. A91.
17
fact that she did not "accept personal responsibility for the
difficulties she experienced with the other elected officials of
Peach County." A7. Their opinion ended with this
statement:
We take this refusal into account in
determining that O'Neal's acts of wilful [sic]
misconduct and prejudicial § conduct
demonstrates she is presently unfit to hold
judicial office.
A7.
The court did not address any due process issues
raised in O'Neals petition. A53.
B. Dissenting Opinion
Benham, P.J., Presiding Justice, disagreed with the
majority's opinion that O'Neal should be removed from
office.” After stating that "the drastic action of removing a
judge from office is one that should be taken with great
caution and concern", he said,
When a judge has been elected by the people,
removal from office is tantamount to
impeachment...Judges do not lose their right to
freedom of expression when they take the
bench. In fact, public officials - including
judges - are often times called upon to explain
their conduct in public forums. Our
democratic society is based on a free flow of
information and ideas and we have jealously
guarded this right for as long as the republic
- He did agree with Divisions 1 and 2 of the majority's opinion , but
disagreed with Divisions 3 and 4, and the majority's decision to remove O'Neal
from office. A8.
18
has existed. Donning a robe does not strip a
judge of freedom of expression.
The majority opinion does not state how the
statement by the judge in the local paper
violated the Code of Judicial Conduct or
undermined public confidence in the office.
Judges are accountable to the public and they
should not be unduly punished for explaining
their actions to the public. In the absence of a
showing that the statement by the judge
violated a specific provision of the Code of
Judicial Conduct, I must disagree with the
majority's determination.
AY.
Justice Benham also disagreed with the majority's
opinion in finding O'Neal unfit to hold judicial office on the
basis that she "refused to acknowledge that any specific
action was improper" and did not "accept personal
responsibility for the difficulties she experienced with the
other elected officials of Peach County". He commented
further on this part of the majority's opinion and stated,
This statement is a slim reed indeed upon
which removal from office is justified. We
must keep in mind that, while the actions
taken by the judge were unauthorized, she
sought to have done nothing more than was
provided for under law. Therefore, I disagree
with the majority's determination in Division 4
that refusal to admit fault is justification for
removal from office.
“ ens “Calan 5 chew
19
AY.
In her motion for reconsideration, which was denied
by the court on March 30, 1995, O'Neal challenged the court's
opinion with respect to her public statement on First
Amendment grounds, and the court's consideration of her
refusal to acknowledge that any specific action was improper
and her refusal to accept personal responsibility for the
difficulties she experienced with the other elected officials of
Peach County on Fifth Amendment grounds. A45. Also, In
her motion for reconsideration, O'Neal challenged on Fifth
Amendment grounds the lack of due process accorded her by
the JQC, and the denial by the JQC of the motion for
continuance presented by her attorney. A48..
REASONS FOR GRANTING THE WRIT
I. This case raises issues of exceptional legal
importance for judges who express public opinion
about social, political, or governmental matters.
A. The Supreme Court of Georgia violated a
judge's right to freedom of expression in
contravention of the First Amendment to
the United States Constitution by removing
her from office for making a truthful public
statement about her difficulties with other
elected county officials, who had violated
the law and failed in the performance of
their statutory duties.
The result of the decisions below is that judges in
Georgia who speak out against corruption, malfeasance,
misfeasance, or nonfeasance, committed by elected or
non-elected government officials, or who "explain their
20
conduct in public forums",”’ risk being removed from office
at the arbitrary or retaliatory whim of those in power, while
judges who remain silent have a better chance at remaining in
office because of their silence.
Moreover, as a published opinion, the decision below
by the Supreme Court of Georgia is likely to receive
widespread study and consideration throughout the State of
Georgia and the nation. Given the novel nature of the facts
and the presence of a First Amendment issue, and the few
reported cases involving removal of a judge for conduct
involving freedom of speech, the case could be used to
unjustifiably restrict the First Amendment rights of judges.
Accordingly, its misapplication by the courts and potential
chilling effect upon judges who might otherwise express their
opinion with respect -to "matters of legitimate public
concern" is significant.
In this case, the First Amendment issue is similar to
the one involving an elected Texas Justice of the Peace who
brought suit in federal court against the Texas Commission
on Judicial Conduct and its commissioners for a public
reprimand of him for making statements critical of the
administration of the county judicial system. Scott v.
Flowers, et al., 910 F.2d 201 (5th Cir. 1990). In Scott, the
- Quoting from Justice Benham's dissent. A8.
” Quoting from Scott v. Flowers, et al., 910 F.2d 201 (Sth Cir. 1990).
- Soon after taking office, Scott became concerned about what he
perceived to be an injustice in the administration of the county court system.
Apparently, the great majority of defendants who appealed their traffic offense
convictions from justice or municipal courts to the Fort Bend County
Court-at-law during Scott's term in office succeeded in having the charges against
them dismissed or the fines sharply reduced.' This practice, Scott believed,
unfairly allowed those "in the know" to violate the traffic laws repeatedly and
with impunity while penalizing less sophisticated individuals who committed the
same offenses.
21
court held "that the Commission could not constitutionally
reprimand Scott for making public statements critical of the
court-at-law and the district attorney's office".
Scott, 910 F.2d at 213.
In September 1983, Scott took his concerns to the local government and
the citizenry by writing an "open letter" to county officials. In the letter, Scott
attacked the district attorney's office and the county court-at-law for dismissing so
many traffic ticket appeals and called upon the county officials to offer
suggestions to remedy the problem. If the county refused to change this practice,
Scott concluded, the public at least should be made aware of it, and the
court-at-law "would be really busy then."?
The letter was circulated to the local press and prompted several
newspaper articles. It also attracted the attention of Thomas Culver, one of the
judges of the court-at-law, who wrote Scott an angry letter criticizing him for not
raising his concerns privately. Eventually, both the newspaper articles and
Culver’s letter found their way into the files of the Texas Commission on Judicial
Conduct (the "Commission"). *
In November 1983, the Commission's executive director, defendant
Robert C. Flowers, advised Scott by letter that he had been the subject of several
complaints received by the Commission.‘ Scott responded to the complaints both
in writing and in person, having been invited by Flowers to appear informally
before the Commission.
On March 19,1984, the Commission issued a formal public reprimand
of Scott. After first acknowledging that Scott's intentions were good and his
personal integrity was not at issue, the Commission then chided him for being
"insensitive" in certain "written and oral communications" addressed both to the
litigants in his courtroom and to the public at large. Such "insensitivity," the
Commission stated, was inconsistent with the proper performance of Scott's duties
as justice of the peace and served only to "cast public discredit upon the
judiciary." The Commission concluded the reprimand with a warning, advising
Scott to be "more restrained and temperate in written and oral communications in
the future.”
Although the Commission failed to cite any examples of Scott's alleged
insensitivity to litigants,’ it was quite specific in identifying the public comments
it found to be objectionable. The Commission criticized Scott both for his
statement in the open letter that the county court-at-law "would be really busy" if
the public realized that an appeal of a traffic ticket was tantamount to a dismissal
and for his comment to a reporter, in connection with the letter, that "the county
court system is not interested in justice." °
Scott v. Flowers, et al., 910 F.2d 201 (5th Cir. 1990).
22
The public statement issued by O'Neal, which the
court found violated the Code of Judicial Conduct, was a very
tempered expression of the facts leading up to and the reasons
for her past official actions. It was the type of speech that
falls well within the core concepts of First Amendment
protection. O'Neal's removal from office was based in whole
or in part on her use of such speech, and the court, without
explaining how such speech violated the Code of Judicial
Conduct or undermined public confidence in the judiciary or
her office has violated her First Amendment Rights.”
II. This case raises a novel issue of great legal
significance for judges who are called before
judicial disciplinary bodies on charges of
misconduct.
A. The Supreme Court of Georgia violated a
judge's due process rights in contravention
of the Fifth Amendment to the United
States Constitution by removing her from
office for refusing to acknowledge that any
specific action she had taken was improper
and for refusing to accept personal
responsibility for the difficulties she
experienced with the other elected officials
of Peach County, who had violated the law
and failed in the performance of their
statutory duties.
The decision below by the Supreme Court of Georgia,
standing as a precedent decision, will put judges in Georgia in
risk of being removed from office if they are charged with
misconduct and they refuse to acknowledge that any specific
action they have taken was improper or refuse to accept
ad See Justice Benham's dissent. A9.
23
personal responsibility for the difficulties they have
experienced, or they deny the charges against them. The
decision is oppressive and coercive, and it negates any notion
of fundamental fairness in violation of the due process clause
of the Fifth Amendment.
The Supreme Court of Florida has recently expressed
the following opinion concerning judges who refuse to admit
wrongdoing or refuse to express remorse: "Every judge who
believes himself or herself truly innocent of misconduct has a
right -- indeed, an obligation -- to express that innocence to
the Commission ..." Inquiry Concerning A Judge No, 93-62,
RE: P. Kevin Davey, Supreme Court of Florida (1994).
The Supreme Court of Georgia previously adopted a
statement with respect to denial of guilt and remorsefulness,
which in part states:
Can it be said that one who denies guilt and,
therefore, is not remorseful for his wrongdoing
has been rehabilitated? The question is best
analyzed and answered by the logic of In the
Matter of Hiss, Mass. 333 NE2d 429, 437
(1975). ‘Simple fairness and fundamental
justice demand that the person who believes he
is innocent though convicted should not be
required to confess guilt to a criminal act he
honestly believes he did not commit. For him,
a rule requiring admission of guilt and
repentance create a cruel quandary: he may
stand mute and lose his opportunity; or he may
cast aside his hard retained scruples and,
paradoxically, commit what he regards as
perjury to prove his worthiness to practice law.
24
Men who are honest would prefer to relinquish
the opportunity conditioned by this rule ..
In The Matter Of Mitchell, 249 Ga. 280 (290 SE2d 426)
(1982).
In this case, the record substantially shows that O'Neal
sincerely and genuinely believed her conduct to be correct
given all the relevant circumstances. Her refusal to
acknowledge any improper action or to accept personal
responsibility for the difficulties she experienced with the
other elected Peach County officials is a protected right
guaranteed by the Fifth Amendment.
Accordingly, the decision by the court to remove
O'Neal from office, which was partially based on her refusal
to acknowledge tliat any specific action taken by her was
improper and her refusal to accept personal responsibility for
the difficulties she experienced with the other elected officials
of Peach County, violated the Fifth Amendment to the U. S.
Constitution as applicable to the states through the Fourteenth
Amendment.
Ill. This case raises the issue of adequacy of
legal counsel for judges called before
judicial disciplinary bodies on charges of
misconduct.
A. The Supreme Court of Georgia violated a
judge's due process rights in contravention
of the Fifth Amendment to the United
States Constitution by removing her from
office while the hearing record relied upon
for the removal determination showed that
she was denied adequate legal counsel at the
hearing.
25
This case presents an extremely gross example of
inadequate legal representation and ineffective assistance of
counsel. The factual background was set forth earlier in this
petition.” Briefly, O'Neal was notified by her attorney's
office on September 26, 1994, that she would need to find
substitute counsel to attend the pre-trial conference scheduled
for September 27, 1994. She was able to make arrangements
with another attorney to attend the conference. The substitute
counsel also appeared with O'Neal two days later at the
hearing on September 29, 1994.
At the hearing on September 29, 1994, substitute
counsel moved for a continuance. He made the following
points unequivocally clear, as shown in the record: he was
unprepared to proceed; he believed that he could not
adequately represent O'Neal; and he thought he would be
ineffective. The JQC denied his motion. At that point there
were thousands of pages of documents and exhibits, and
hundreds of pages of depositions in the case. The record was
exceptionally voluminous. Most importantly he knew
virtually nothing about the witnesses or his client. He could
not cross-examined the prosecution witnesses effectively
because he did not have a meaningful opportunity to read the
case documents or to discuss the case with O'Neal. For the
same reason he could not present an adequate case for the
defense.
It was under those very unfair conditions that the JOC
hearing record was produced that ultimately the Supreme
Court of Georgia used to form their opinion. Thus, O'Neal
was removed from office on the basis of a hearing record that
is tainted by grossly inaccurate and incomplete information,
and misstatements of fact.
41
See supra p. 12-13.
26
Accordingly, O'Neal was denied the most basic
notions of fundamental fairness by not being accorded an
opportunity to acquire adequate legal representation for the
JQC hearing, and thus her Fifth Amendment Rights were
violated.
CONCLUSION
The Petition for Writ of Certiorari should be granted
for the reasons set out above.
Respectfully Submitted,
Linda O'Neal
Petitioner, pro se
Route 1, Box 478
Fort Valley, Georgia 31030
(912) 825-1678
Al
IN THE SUPREME COURT OF GEORGIA
Decided March 17, 1995
INQUIRY CONCERNING
A JUDGE # 94-70
PER CURIAM.
Following an investigation and formal hearing, the
Judicial Qualifications Commission ("JQC") recommended
that respondent Judge Linda O'Neal, Chief Magistrate of
Peach County, be removed from office. We accept the
recommendation.
The JQC received fifteen complaints regarding the
conduct of Judge O'Neal. The JQC investigated the
complaints and issued a Notice of Formal Proceedings, which
set forth six separate charges.
The evidence before the Commission showed that
O'Neal had won a contested election for the office of Chief
Magistrate of Peach County, unseating the incumbent of
sixteen years. The evidence also showed a pattern of an
uncooperative working relationship between O'Neal and the
County Board of Commissioners.
The evidence relating to the most serious charges
showed that on September 13, 1993, O'Neal issued four
separate orders to the sheriff and each of his deputies.
Collectively, these orders required the sheriff and his deputies
to comply with the provisions of OCGA § 15-10-100 (b),
which requires a sheriff to perform the duties of constable if
no provision is made for appointment of constables, and
A2
OCGA § 15-10-102, which sets forth the powers and duties
of constables.' O'Neal sent the orders to Deputy Deese at the
Sheriff's Department to serve. When Deese refused to serve
the orders, O'Neal issued an order directing the coroner to
serve the orders. The coroner responded by a letter that he
was unauthorized to serve the orders. O'Neal then issued a
Rule Nisi to determine whether Deese should be held in civil
contempt and a Rule Nisi for criminal contempt against the
coroner. At the civil contempt hearing on September 23,
1994, O'Neal stated she was the plaintiff and called and
cross-examined Deese. O'Neal verbally issued the orders to
the sheriff's deputies, the majority of whom were in
attendance, and stated that Deese was purged of contempt.
On September 24, 1994, O'Neal issued an indefinite stay with
respect to the coroner's hearing.
Later that same day, at a called meeting, the Board
publicly read a letter to O'Neal in which the Board stated,
We have decided to give you 30 days to see if you can
get your act together. If you continue with your
present attitude, causing problems and conflict in the
county government, we will have no choice but to
recind [sic] your salary increase and return you to the
original salary granted to you by the previous
commissioners.’
: The statutorily mandated powers and duties of the sheriff in the absence
of an appointed constable are to attend regularly all sessions of magistrate court;
to pay promptly money collected to the magistrate court; to execute and return all
warrants, summonses, executions, and other processes directed to them by the
magistrate court; and to perform such other duties as are required by law. OCGA
§ 15-10-102.
, The present Board had given O'Neal a $10,000 increase, after the
previous commissioners had reduced O'Neal's salary $20,000 from that given her
predecessor.
A3
Relying upon this statement, O'Neal obtained felony warrants
from a magistrate from a distant county, two months after this
statement was made, against the members of the Board for
intimidation of a court officer in violation of OCGA §
16-10-97. O'Neal held the warrants in her office for
approximately a week before having them served. The
District Attorney of Houston County was appointed special
prosecutor and ultimately dismissed the warrants. Following
the dismissal, O'Neal issued a lengthy public statement
justifying her actions in seeking the warrants and detailing
her disputes with the board of commissioners and the sheriff.
The Judicial Qualifications Commission, following a
hearing, issued its findings and recommendations. The
Commission found that four charges had been proven by
clear and convincing evidence,’ that such conduct constitutes
a violation of Canons 1, 2 (A) and (B), 3B (4) and (7), and 3E
(1), and recommended that O'Neal be removed from office.
1. Discipline may be imposed only upon a showing
by clear and convincing evidence, JQC Rule 7 (e), that the
judge engaged in "willful misconduct in office, willful and
persistent failure to perform the duties of a judge, habitual
intemperance, or conduct prejudicial to the administration of
justice which brings the judicial office into disrepute." JQC
Rule 4 (b).* We interpret "willful misconduct in office" to
mean actions taken in bad faith by the judge acting in her
judicial capacity. "Conduct prejudicial to the administration
of justice" refers to inappropriate actions taken in good faith
. The JQC found that allegations relating to one charge were arguably
within a magistrate's duties and, standing alone, were insufficient to warrant
disciplinary action.
% A judge may also be removed from office if he or she is laboring under
a “disability that seriously interferes with the performance of the judge's duties
which is or is likely to become permanent." JQC Rule 4 (b). That provision is
not involved in this matter.
A4
by the judge acting in her judicial capacity, but which may
appear to be unjudicial and harmful to the public's esteem of
the judiciary. Prejudicial conduct may also refer to actions
taken in bad faith by a fudge acting outside her judicial
capacity. Whether discipline should be imposed and the
severity of discipline must be
determined through a reasonable and reasoned
application of the text [of the Code of Judicial
Conduct] and should depend on such factors as the
seriousness of the transgression, whether there is a
pattern of improper activity, and the effect of the
improper activity on others or on the judicial system.
Georgia Code of Judicial Conduct, preamble (1994). With
these principles in mind, we examine the allegations of
misconduct. ,
2. O'Neal's orders of September 13, 1994, directed
the sheriff and his deputies to perform the very duties the law
imposes. O'Neal contends that the orders address her concern
over a lack of courtroom security, delays by the sheriff in
serving warrants and in turning over money collected by the
sheriff's department. She characterizes the orders as a
"remedial form of notice" to make her court officers aware of
their responsibilities. She also contends that such orders are
authorized by Ga. Const. of 1983 Art. VI, Sec. I, Par. IV and
OCGA § 15-1-3 (4), which provides that every court has the
power "to control . . . . the conduct of its officers."
Paragraph four of OCGA § 15-1-3 isa codification of
a power inherent in the courts. Lowe v. Taylor, 180 Ga. 654,
658 (180 SE 223) (1935). The inherent power of a court
should not be used as a weapon in political power struggles,
but it "must be carefully preserved" and "cautiously used."
AS
Grimsley _v. Twiggs County, 249 Ga. 632, 634 (1982).
Reliance upon a court's "inherent power" is inappropriate and
unnecessary where specific remedies exist. See McCorkle v.
Judges of Superior Court, 260 Ga. 315, 316 (392 SE2d 707)
(1992) ("inherent power is not a sword but a shield").
The appropriate remedy to require the proper
performance by an official of a statutorily imposed duty is to
seek a writ of mandamus. See Grimsley, 249 Ga. at 632
("[mJandamus is the proper ‘remedy to compel a public
officer or a county board to perform a duty imposed by
law"), quoting Mattox v. Board of Education, 148 Ga. 577,
581 (97 SE 532) (1918); OCGA § 9-6-20. Although these
orders appear to be in the nature of mandamus, a magistrate
court, does not have the power to issue writs of mandamus,
Ga. Const. Art. VI, Sec. I, Par. 4, nor was the required notice
given or hearing held, OCGA § 9-6-27. O'Neal would have
certainly been authorized to file a petition for mandamus in
the superior court, but she was not authorized to issue an
order requiring the performance of an official duty. See
McCorkle, 260 Ga. at 317 n. 4 (Hunt, J., concurring) (remedy
for judges of inferior courts for whom county has failed to
appropriate necessary funds for operation of court is limited
to mandamus in the superior court). We thus find O'Neal
exceeded the authority vested in the magistrate court in
issuing orders to require court officers to comply with their
statutorily imposed duties.
Additionally, a review of the transcript of the hearing
on the rule nisi directed toward Deese demonstrates that
O'Neal had been become personally embroiled in the matter
and, therefore, under Dowdy v. Palmour, 251 Ga. 135, 142
(304 SE2d 52) (1983), another judge was required to hold the
contempt hearing. See also Canon 3E (1) ("Judges shall
disqualify themselves in any proceeding in which their
A6
impartiality night [sic] reasonably be questioned"). The JQC
made the factual finding that O'Neal took these actions in
order to intimidate and coerce the sheriff and his deputies.
Use of the power of the judicial office to issue orders and to
exercise its contempt power in order to intimidate and coerce
other elected officials violates Canons 2A, 2B, and 3e (1) and
demonstrates wilful [sic] misconduct in office.
3. The statement by the Board of Commissioners that
it would reduce her salary was contrary to the express
language of OCGA § 15-10-23 (b) (no "magistrate's
compensation or supplement shall be decreased during any
term of office"). However, obtaining felony warrants for the
entire board based upon a clearly unenforceable threat issued
in the midst of a political squabble was not an appropriate or
judicious response by O'Neal. See Canon 2A (Judges...
"shall act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary").
Following the dismissal of the felony warrants, O'Neal issued
to a local paper a written public statement in which she
detailed the circumstances leading up to her seeking the
felony warrants. The statement appears to be an attempt to
influence public opinion in her favor and against other Peach
County officials, including the sheriff and board of
commissioners. Such conduct violates Canons 1, 2A, 2B,
and 3B (4) and is prejudicial to the administration of justice
and undermines public confidence in the impartial
functioning of judicial officers.
4. O'Neal refused to acknowledge that any specific
action was improper; nor did O'Neal accept personal
responsibility for the difficulties she experienced with the
other elected officials of Peach County. We take this refusal
into account in determining that O'Neal's acts of wilful [sic]
misconduct and prejudicial conduct demonstrate she is
A7
presently unfit to hold judicial office.’ Therefore, we order
that Judge Linda O'Neal, Chief Magistrate of Peach County,
be removed from office.
Removal from office,
All the Justices concur. except Hunt, CJ. not
participating, and Benham, P.J.. who concurs in part_and
i
After a review of the entire record, we fi
have not been proven by clear and convincing evi
cumulative; therefore, they form no independent
nd that the remaining charges
dence or that they are
basis for our decision.
CRN, Ca any
Eaten ways ‘
EL SET Meee NS Le eR
A8
Inquiry Concerning a Judge #94-70
BENHAM, Presiding Justice, dissenting.
While I agree with Divisions | and 2 of this court's
opinion, I cannot agree with Divisions 3 and 4; therefore, I
must respectfully dissent.
The drastic action of removing a judge from office is
one that should be taken with great caution and concern.
When a judge has been elected by the people, removal from
office is tantamount to impeachment; therefore, the violations
of the Code of Judicial Conduct should be proven by "clearn
and convincing" evidence. Divisions | and 2 of the majority
opinion clearly show a violation of the Code of Judicial
Conduct and I concur in those determinations. However, my
concurrence dissolves upon reaching Divisions 3 and 4 of the
majority opinion. In Division 3, the majority states:
The statement [an account by the judge in the local
newspaper of what transpired and her motivations for
taking the actions she took] appears to be an attempt
to influence public opinion in her favor and against
other Peach County officials, including the sheriff and
board of commissioners. Such conduct violates
Canons 1, 2A, 2B, and 3B(4) and is prejudicial to the
administration of justice and undermines public
confidence in the impartial functioning of judicial
officers.
Judges do not lose their right to freedom of expression when
they take the bench. In fact, public officials - including
judges - are often times called upon to explain their conduct
in public forums. Our democrataic society is basedon a free
A9
flow of information and ideas and
we have jealously guarded
this right for as long as the republic has existed. Donning a
robe does not strip a judge of freedom of expression.
The majority opinion does not State how the statement
by the judge in the local paper violated the Code of Judicial
Conduct or undermined public confidence in the Office.
Judges are accountable to the public and they should not be
unduly punished for explaining their actions to the public. In
the absence of a showing that the statement by the judge
violated a specific provision of the Code of Judicial Conduct,
I must disagree with the majority's determination as to
Division 3.
In Division 4 of its opinion, the majority apparently
finds evidence of aggravation and states:
O'Neal refused to acknowledge that any specific
action was improper; nor did O'Neal accept personal
responsibility for the difficulties she experienced with
the other elected officials of Peach County. We take
this refusal into account in determining that O'Neal's
acts of wilful misconduct and prejudicial conduct
demonstrate she is presently unfit to hold judicial
office.
This statement is a slim reed indeed upon which removal
from office is justified. We must keep in mind that, while the
actions taken by the judge were unauthorized, she sought to
have done nothing more than was provided for under law.®
Therefore, I disagree with the majority's determination in
6
The judge sought to have the
Prevent the Board of Commissioners
salary.
sheriff attend the sessions of court and to
from reducing her Statutorily-mandated
Al0
Division 4 that refusal to admit fault is justification for
removal from office.
The decision of the court follows the recommendation
of the Judicial Qualifications Commission; however,
noticeably absent - though I recognize it is not required by
the rules governing the JQC - is a finding by the JQC as to
why some lesser punishment is not applicable. In the five
years I have served on the Supreme Court of Georgia, this
court has never seen fit to remove a judge from office.
Instead of ordering this judge from office, I would remand
the case to the JQC for a finding as to why lesser punishment
is not appropriate.
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BEFORE THE COMMISSION
ON JUDICIAL QUALIFICATIONS
INQUIRY CONCERNING A JUDGE #94-70
JUDGE LINDA O'NEAL DOCKET NO. 94-70
FINDINGS AND RECOMMENDATIONS
OF THE COMMISSION
A.
STATEMENT OF THE CASE
This matter originated in December 1993 when news
articles appeared in The Ledger-Tribune (Peach County), The
Macon Telegraph and The Atlanta Journal-Constitution
publicizing the arrest of all five (5) members of the Peach
County Commission pursuant to a felony warrant requested
by Linda O'Neal, the Chief Magistrate of Peach County,
Georgia (hereinafter "Respondent") and issued by J. Kendall
Jordan, the Chief Magistrate of Hart County, Georgia. [R.
1-6].
Almost immediately after the publication of such
articles, the Commission received a total of fifteen (15)
complaints from citizens of Peach County expressing
concern, and in some instances outrage, over the conduct of
the Respondent. [R. 7-26].
As more fully shown in said complaints, these
citizens characterized Respondent and/or her conduct as
"overstepping her boundaries; an insult to the county,
Al3
disturbing; an embarrassment to the community; an attempt
to intimidate and bulldoze other county officials; out of
control; lost touch with reality; stumbling from one
controversy to another; negative publicity harmful to the
county; deeply concerned and outraged; and conduct very
inappropriate to her office."
By letter dated January 25, 1994, Charles Bartlett,
Chairman of the Peach County Commission, advised the
Commission of a series of continuing problems between
Respondent and various county officials during Respondent's
first year in office and expressed the opinion that the Judge
had clearly abused the powers of her office; been an
embarrassment to the people of Peach County; and could not
be effective in her position over the remaining term of her
office. [R. 29-43].
By letter dated January 10, 1994, the Commission
provided copies of the thirteen (13) complaints received as of
that date to Respondent and instructed her to meet with the
Commission on Friday, January 28, 1994. [R. 27-28].
Copies of the Bartlett letter and additional complaint were
subsequently provided to Respondent. Respondent met with
the Commission as directed; denied the allegations made
against her, both orally and in writing; and_ stated
unequivocally that she had at all times adhered to the highest
standards of judicial conduct. [R. 44-45].
Following this conference and by letter dated January
31, 1994, Respondent was notified that the Commission had
voted to investigate the complaints filed against her and
advised of her rights under Commission Rule 4. [R. 46-47].
By letter dated February 11, 1994, Respondent adopted and
incorporated by reference her letter of January 28, 1994 and
Al4
again denied any willful misconduct in office or any conduct
prejudicial to the administration of justice which brings the
judicial office into disrepute. [R. 48].
Upon completion of its investigation, the Commission
determined that Formal Proceedings should be instituted and
a Notice of Formal Proceedings was mailed to Respondent
by certified mail on March 31, 1994. [R. 49-53].
By letter dated April 11, 1994, the Commission
transmitted to Respondent all materials required by Rule
8(a). [R. 54].
On or about May 4, 1994, Respondent's Answer to
the Notice of Formal Proceedings generally denying all
allegations was timely filed. [R. 55-65]. Although this
answer contained numerous special defenses, no ruling was
sought and none was made respecting the same, and the
matter was subsequently heard by the full Commission on its
merits’.
A pre-hearing conference was scheduled for
September 27, 1994 by Judge Hugh Lawson, the judicial
Commission member designated by the Chair to preside in
this matter. A transcript of said conference is included in the
record being transmitted to the Clerk of this court
simultaneously with this pleading. [R. 66-81].
Immediately prior to the scheduled pre-trial
conference, Respondent filed in this Court an emergency
; Pursuant to the provision of Rule 1(d), Judge Robert B. Struble, a
former judicial member of the Commission, was appointed to serve in lieu of
Judge Alice D. Bonner, who voluntarily recused due to a prior partnership with
counsel for the Commission.
Al5
motion for a continuance of the scheduled pre-trial
conference, as well as the Formal Hearing then scheduled to
begin on September 29, 1994. [R. 82-87]. This Motion was
opposed by the Commission [R. 88-117], and by order dated
September 26, 1994, such Motion was denied without
opinion. [R. 118].
At the outset of the Formal Hearing, Respondent's
Motion to Recuse [R. 119-123] and her oral motion for
continuance were denied. [FHT 1-18]. The complete
transcript (445 pages), together with some 168 exhibits and 6
Defendant's exhibits received in evidence, is also included in
the record being transmitted to the Clerk of this Court
simultaneously with this pleading. To avoid confusion, this
Formal Hearing transcript will hereinafter be cited as [FHT p.
3
B.
SUMMARY OF THE EVIDENCE
At the Formal Hearing, Commission Counsel
presented five (5) live witnesses; five (5) witnesses by
deposition; and introduced 168 exhibits. Respondent was her
only witness and introduced only six (6) exhibits
[unnumbered "Defendant's exhibits."] The evidence thus
presented can be summarized as follows:
Respondent, a non-lawyer, who ran for office on a
political platform against government corruption and in favor
of change [Closing Statement of Respondent, p. 2] and who
Prior to the hearing, depositions were taken and original transcripts of
those introduced into evidence are likewise being transmitted to the Clerk of this
Court simultaneously with this pleading.
Ral OG Bel elas i
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apparently has no understanding of the proper role and
function of a judge, has been at war, both privately and
publicly, with almost every other elected official in Peach
County, Georgia, virtually since the day she took office in
January 1993. This longstanding battle was initially
conducted through correspondence in which Respondent
made repeated and almost continuous demands on various
County officials. [Ex. 1-70]. The battle became more
intense in September 1993 when Respondent issued a set of
four (4) identical orders to each and every employee of the
Sheriff's Department of Peach County, Georgia (some 56 in
number), regardless of the position held by such employees.
[FHT 190; Ex. 71]. The issuance of such orders appears to
be beyond the power and authority of a magistrate (O.C.G.A.
§ 15-10-2), but in any event, there is absolutely no evidence
in this record that the Sheriff's Department had ever refused
to serve and/or deliberately delayed the service of any papers
issuing from the Magistrate Court. Obviously, the Sheriff's
Department has other duties to perform and is not required to
be available to the Magistrate Court at the whim of the
Magistrate. In fact, the uncontradicted testimony of the
Sheriff is that he did not have adequate staff and that often
the persons on whom warrants were to be served were not
able to be located. [FHT 17, 170-174]. Under these
circumstances, the Commission is compelled to conclude that
the issuance of these orders was nothing more than an
intentional misuse of judicial power in a blatant attempt to
intimidate and/or coerce the duly elected Sheriff of Peach
County, as well as every secretary, clerk, radio dispatcher,
and deputy in the Sheriff's Department.
In addition, and as further evidence of this blatant
misuse and abuse of the power of her office, when said orders
were not served promptly enough to satisfy Respondent, she
——-T
Al7
issued a Rule Nisi to the Chief Deputy Sheriff for civil
contempt. [FHT, p.191; Ex. 74]. This was followed by an
order to the County Coroner to serve the Sheriff [Ex. 81], and
when the Coroner, after seeking legal advice, responded that
he lacked authority to serve the orders, he was issued a Rule
Nisi for Direct Criminal Contempt. [Ex. 75, 80 and 166].
The transcript of the Rule Nisi hearing for the Chief
Deputy Sheriff reveals the real motivation for the
Respondent's actions in this instance. Among other things,
she wrongfully denied a motion to recuse filed by counsel for
the accused; acted as both prosecutor and judge; and
completely failed to follow the procedures outlined by this
Court in Dowdy v. Palmour, 251 Ga. 135, in order to meet
due process requirements. In addition, she made no finding
of contempt, but declared that the accused had purged
himself of contempt after each employee of the Sheriff's
Department who was present in court stated his/her name on
the record. However, no written order has ever been entered
in this matter. [Ex. 167; FHT 194].
The contempt hearing for the Coroner was continued
indefinitely after a conference between counsel for the
Coroner and the Respondent. No order of any kind was ever
entered, and so far as appears, this citation is still a pending
matter. [Ex. 86; FHT 86, 143].
The scenario of events surrounding the issuance of
these orders is best understood by reviewing the various
documents evidencing the actions taken by the Respondent
during the period September 13-22, 1993. [Ex. 71-81]. On
September 13, 1993, the ex parte orders were issued [Ex. 71];
on September 20, 1993, Respondent's request for a salary
increase was denied [Ex. 72, 73]; on September 20, 1993
PASE EI BS PIS VRS La OR AIS AER OTE Thy ee
Als
contempt citations were issued which, among other things,
provided; "Said accused contemner may bring legal counsel
to such hearing if desired" [Ex. 74]; and when both the Chief
Deputy Sheriff and the Coroner refused to serve the ex parte
orders, Respondent appointed her clerk to serve the Chief
Deputy [Ex. 82] and another individual, Brooks Livingston,
to serve the Sheriff [Ex. 79]. The so-called contempt hearing
for the Chief Deputy followed [Ex. 167]; the scheduled
contempt hearing for Coroner Poole was continued; and
Respondent refused a request by the County Commissioners
to meet with them to discuss "the office of Magistrate Judge."
[Ex. 83, 84].
This bizarre series of events was followed by the
County Commissioners mailing the Respondent a copy of a
statement read at the Commission meeting which she refused
to attend [Ex. 85], and Respondent's rather curt reply in
which she characterized the statement as "diatribe." [Ex. 81].
It should be noted that nowhere in this reply or elsewhere in
this record is there any mention of the alleged "threat" which
subsequently gave rise to the felony warrants Respondent
obtained against all five (5) County Commissioners in
December 1993 for an alleged violation of O.C.G.A. §
16-10-97. It should also be noted that, for whatever reason,
from and after the September 27, 1993 letter, Respondent
always signed her correspondence over the title "The
Honorable Linda O'Neal." [Ex. 87 forward].
Respondent's long running battle with the County
Commission continued unabated. After successfully getting
the Commission to designate the September 24, 1993
statement as "official action" and without further discussion
with the Commission, Respondent, by letter dated November
15, 1993, forwarded a copy of the September 24, 1993
Al9
statement to the District Attorney of the Macon Judicial
Circuit and requested that the matter be presented to the
Peach County Grand Jury. [Ex. 101]. Because the District
Attorney did not act on this request with the promptness
which Respondent felt was appropriate under the
circumstances, she concluded, "I was being stonewalled."
[FHT 356]. Respondent testifies she thereafter consulted a
Judge Hughes in Twiggs County; Danny Porter, the District
Attorney in Gwinnett County; a Judge Judy Cooper from
Clay County; Judge Wayne Purdom; and some unnamed
individua in the Attorney General's Office concerning the
possibility of issuing warrants against the Commissioners,
and while each felt her actions to be justified, nevertheless,
all refused to issue the requested warrants. [FHT 357-364].
Apparently determined to find some judicial officer
who would issue felony warrants against the five (5)
individuals constituting the governing authority of Peach
County based solely upon the statement of September 24,
1993, Respondent, without consulting any other judicial
officer in the entire Macon Judicial Circuit, telephoned
Magistrate Kendall Jordan in Hartwell, Hart County,
Georgia, whom she describes as "a neutral, detached
magistrate" she had met at a seminar in Athens in August or
September of 1993 [FHT 359-361].'°
9
Although Respondent's counsel states in his post-trial memorandum
that "Judge O'Neal is a product of business where you are taught to put
everything in writing to document issues and request" (Closing Statement of
Respondent, p.6) and although the record is replete with letters documenting
practically every action taken by Respondent, including writing some twelve (12)
diffe: j (ex. 55-66), there is
not one single document in this record which even remotely supports
Respondent's uncorroborated testimony concerning the alleged conversations
with other judicial officers.
On cross-examination, Respondent admits that one of the reasons she
went to Judge Jordan was because he had previously discussed with her similar
A20
After faxing her affidavit to Judge Jordan and being
advised that he would issue the requested warrants,
Respondent personally typed the warrants in her office in
Peach County; assigned numbers to each warrant; drove to
Hartwell, Georgia; had the warrants signed by Judge Jordan;
brought the signed warrants back to her office where they
remained unsealed and undocketed until she personally
delivered them to the Sheriff for execution approximately
one (1) week later [FHT 363, 395-397, 433-437];'' and
subsequently sought reimbursement from the County for her
mileage to Hartwell claiming it was incurred in the
performance of official duties. [Ex. 164; FHT 406].
At approximately 9:00 A.M. on the morning of
December 28, 1993, Respondent personally delivered the
signed warrants to the Sheriff of Peach County. Within
fifteen (15) minutes after the warrants were delivered, the
Sheriff's office began receiving calls from news media all
over Georgia, and the individual County Commissioners
received similar calls even before being told they were being
arrested. [FHT 82-83; 208-209; 243-244; 247].
The Commissioners were subsequently booked and
fingerprinted, but after an investigation by the District
Attorney of Houston County, specially appointed to
investigate the charges, all charges were dismissed. [FHT
83-84]. Immediately following this dismissal, Respondent
problems he had experienced with government officials. (FHT 394). “Other
Judges are more likely to grant a favor requested by another Judge." In Re
Inquiry Relating to Alvord, 847 P.2d 1310 (Kans.1993).
' In answer to a question from Commission Member Blackstock,
Respondent conceded that she did not hold other warrants issued from her office
in December until after Christmas.
A2]
issued a public statement to the Byron Gazette in which she
stated her disagreement with the decision and again sought to
justify her actions in her long running battle with the County
Commission. [Ex. 125; FHT 406].
To say that the activities detailed above generated
publicity may well be the understatement of the day. One
need only examine the news articles in this record [R. 1-6;
Ex. 160] and the complaints filed with the Commission [R.
7-26] to observe the public ridicule, embarrassment and
disgust to which such conduct exposed not only the
Magistrate Court of Peach County, but the entire judicial
system of this State.
The final shot in Respondent's all-out war against the
County Commission occurred only three (3) days prior to the
commencement of the Formal Hearing. At that time,
Respondent filed a civil lawsuit against the Commissioners,
and other county officials, in the Superior Court of Peach
County, Georgia, which contains 292 numbered paragraphs
and 61 typewritten pages and which generally seeks to rehash
many, if not all, of the issues giving rise to this proceeding.
[Ex. 168].
As thus viewed, the personal animosity and political
motivation which obviously prompted a judicial officer to
conduct herself in such a disgusting and demeaning manner
literally leap from the pages of this record. However, if
further evidence is needed, it can best be seen in
Respondent's conversation of October 1, 1993 with County
3 The only reported case construing this provision involves physical
threats related to judicial decision making and does not appear to relate to a
judge's communications c’ interpersonal relations with other elected county
officials or their employees. Moon v. State, 199 Ga. App. 94, 404 S.E. 2d 273
(1991).
A22
Commissioner Jack Taylor. When asked by Commissioner
Taylor why she had reduced the amount previously charged
for serving warrants, Respondent replied with a gesture:
... because you and Charles Bartlett stuck your nose
into something that didn't concern you ... this issue is
between me and the Sheriff. [FHT 241-243].
Commissioner Taylor reported this conversation to Chairman
Bartlett by letter dated October 4, 1993 (Ex. 90), and
although Respondent denies the statement attributed to her by
Commissioner Taylor, the Commission finds the testimony
of Commissioner Taylor and the subsequent documentation
most persuasive.
In sum, the totality of the evidence reveals a judicial
officer bent on retaliation against the governing authorities of
the County in which she served and determined to have her
way irrespective of the disrespect and disgrace her actions
were certain to and did, in fact, bring the judicial office
which she held.
Perhaps no better evidence of this all-powerful,
all-knowing and vindictive attitude can be found than
Respondent's own words. In letters written to the Chairman
of the County Commission on August 23 and August 25,
1993, she said:
... | will not tolerate or allow myself with respect to
my duties and responsibilities to be frustrated,
impeded or inconvenienced by subordinate county
personnel .... This pattern of conduct must cease
immediately .... [Ex. 61, 67].
A23
Most telling, however, are the responses given by
Respondent to a series of questions from members of this
Commission at the close of her testimony [FHT 410-441]",
and her response to a question posed by Judge Lawson:
Q.
Looking back over the history of your tenure
as magistrate of Peach County, all that has
been said here about disputes that you had
with the sheriff, County Commissioners, the
coroner, whomever else you may have
disputed with, today at this point before the
Commission, do you see anything you would
have done differently now in reflecting?
That I would have done anything differently?
Yes, Ma'am. In your judgment today, were all
of your actions justified? Do you think you
acted properly? I don't mean legally, I am
talking about as a matter of judgment, in your
judgment today, do you feel that ... the way
you handled all these problems was the right
way to do it, do you feel that way today?
Yes, sir. [FHT 392, 393].
c.
FINDINGS
Using the Notice of Formal Proceedings as an outline
[R. 49-53], and after considering all the evidence and
° For the sake of brevity, this testimony is not quoted, but this Court is
respectfully urged to give particular attention to the cited portion of the transcript.
ee et ie nae ott
A24
arguments of counsel, this Commission makes and enters the
following Findings:
l.
Charge I and each and every subparagraph thereof has
been proved by clear and convincing evidence. [R. 50-52].
2.
Although the charge delineated in Charge II has been
proven by clean and convincing evidence, Respondent's
conduct in this instance was arguably within the duties of a
magistrate to assist persons desiring to file a claim and
standing alone is insufficient to warrant disciplinary action.
[R. 52].
5
Charges III, IV and V have been proven by clean and
convincing evidence. [R. 52-53].
4.
With respect to Charge VI [R. 53], the conduct
proven constitutes a clear violation of the Code of Judicial
Conduct and the following Canons in particular:
(A) Canon 1 provides:
... Judges shall participate in establishing, maintaining
and enforcing high standards of conduct and shall
personally observe such standards of conduct so that
A25
the integrity and independence of the judiciary may
be preserved.
This Canon is a universal exhortation to every judge to
conduct himself or herself in such a manner as to maintain
and preserve the integrity of the Court on which such judge
sits.
This Respondent failed in this responsibility.
(B) Canon 2A provides:
Judges shall respect and comply with the law and
shall act at all times in a manner that promotes public
confidence in the integrity and impartiality of the
judiciary.
(C) Canon 2B provides:
Judges shall not allow their family, social, political or
other relationships to influence their judicial conduct
... (and) shall not lend the prestige of judicial office to
advance the private interest of the judge .... (Emphasis
added).
A judge misuses judicial power when he or she enters
an order based not on the merits but in retaliation against
someone. In Re Lowrey (Texas Special Court of Review,
June 12, 1991).
This Respondent failed in these responsibilities.
D. Canon 3B(4) provides:
A26
Judges shall be patient, dignified and courteous to ...
others with whom they deal ir their official capacity.
This respondent failed in these responsibilities.
E. Canon 3B(7) provides:
Judges shall not initiate or consider ex parte
communications, or consider other communications
made to them outside the presence of the parties
concerning a pending or impending proceeding,
except that ....
This Respondent failed in these responsibilities.
F. Canon 3E(1) provides:
Judges shall disqualify ... in any proceeding in which
their impartiality might reasonably be questioned,
including instances where
(a) the judge has a personal bias or
prejudice against ... a party; ...
(c)(i) is a party to the proceeding; or (c)(ii) is
acting as a lawyer in the proceeding.
This Respondent failed in these responsibilities.
5.
The conduct here proven, as well as applicable
authorities, demands sanctions of the most severe nature.
a
D.
RECOMMENDATIONS
Commission Rule 14, as promulgated by this Court,
authorizes sanctions ranging from a private reprimand to
removal from office. This Commission views its
responsibility in this regard as perhaps its most serious
function and would never recommend the extreme sanction
of removal from office except in a case where the evidence is
both clear and convincing. As noted by the Supreme Court
of Florida in In re Kelly, 238 So 2nd 565, 569 (Fla. 1970),
Cert. Denied, 401 U.S. 692 (1971), the object of these
disciplinary proceedings is not to inflict punishment, but to
determine whether one who exercises judicial power is unfit
to hold a judgeship.
Measured by this standard, it is the unanimous
opinion of this Commission that the cumulative effect of
Respondent's demonstrated lack of understanding of the role
of the judiciary; her obvious lack of judicial temperament;
and her intentional misuse of judicial powers to advance her
own private interests render he unfit to hold a judgeship.
As so aptly noted by the Florida Supreme Court in In
re Graham, 620 So. 2d 1273, 1277 (Fla. 1993), "a judgeship
is a position of trust, not a fiefdom." Based upon
Respondent's appearances before this Commission and her
obvious lack of understanding of the serious offenses
involved in this proceeding, this Respondent is not likely to
ever understand the difference. Accordingly, she is unfit to
hold judicial office and should be removed.
A28
Additional language from the Graham decision is
persuasive and controlling:
A judge who refuses to recognize his own
transgressions does not deserve the authority or
command the respect necessary to judge the
transgressions of others. We are troubled by the fact
that [the judge] shows no remorse and we can only
presume that if this Court reprimanded him, he would
continue to violate the precepts of the Code of
Judicial Conduct. See: Inre Trettis, 577 So. 2d 1312
(Fla. 1991) (When a Judge continuously acts in a
manner that undermines public confidence, removal
may be required.)
Id at 1276.
CONCLUSION
Standing alone, each individual charge against [the
judge] might not warrant the extreme disciplinary
measure of removal. conduct unbecoming a member
of the judiciary may be proved by evidence of
specific major incidents which indicate such conduct,
or it may also be proved by evidence of an
accumulation of small and ostensibly innocuous
incidents which, when considered together, emerge as
a pattern of hostile conduct unbecoming a member of
the judiciary. Graham at 1275, quoting In Re Kelly,
supra.
In the instant case, Respondent's proven conduct was
motivated by personal bias and animosity; was willful,
deliberate and intentional; and can only be described as a
A29
flagrant abuse and/or misuse of the power and prestige of
judicial office to intimidate and coerce other duly elected
constitutional officers to comply with Respondent's every
whim, wish and desire.
Such conduct cannot be condoned and the totality of
the circumstances brings the judicial office into disrepute.
Accordingly, this Commission recommends the extreme
sanction of removal from office.
This 9th day of December, 1994.
JUDICIAL QUALIFICATIONS COMMISSION
/s/
John E. James, Chair |
/s/
Jerry B. Blackstock
/s/
Dr. Barbara Carter
/s/
Charles A. Harris
/s/
Judge Hugh Lawson
/s/
Bob Reinhardt
/s/
Judge Robert B. Struble
/s/
(Sitting by Designation)
A30
A31
SUPREME COURT OF GEORGIA
Case No. S95A0967 Atlanta, March 30, 1995
The Honorable Supreme Court met pursuant to
adjournment.
The following order was passed:
INQUIRY CONCERNING A JUDGE #94-70
Upon’ consideration of the Motion for
Reconsideration filed in this case, it is ordered that it be
hereby denied.
All the Justices concur, except Hunt, C.J., not
participating, and Benham, P.J., dissents.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk's Office, Atlanta
I hereby certify that the above is a true extract from
the minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
/s/
Sherie M. Welch, Clerk
A32
A33
IN THE SUPREME COURT
STATE OF GEORGIA
IN RE INQUIRY CONCERNING A JUDGE #94-70
JUDGE LINDA O'NEAL
MOTION FOR RECONSIDERATION OF JUDGMENT
Comes now, the movant, Linda O'Neal, Chief
Magistrate Judge of Peach County, Georgia, by and through
her attorney, Bruce S. Harvey, and files this motion pursuant
to Supreme Court Rule 47 and requests this Court to
reconsider its Judgment, which ordered that Judge Linda
O'Neal be removed from office, and files said motion on the
following grounds:
1. O'Neal did not issue orders to officials of another
branch of government when she issued orders to her
constables, the sheriff and his deputies, because constables
are part of the judicial branch and subject to the authority of a
magistrate judge.
y I O'Neal did not obtain felony warrants for the entire
board of commissioners based upon "a clearly unenforceable
threat," as proven by the fact that the board has carried out
the threat and reduced her salary.
3. O'Neal was never charged with intimidating and
coercing the sheriff and his deputies, and a finding by the
JQC that such occurred absent an opportunity to present a
A34
defense against said charge, violates O'Neal's due process
rights.
4. Canons 2A, 3B(2), 3C(2), and 3E(1) required or
authorized the actions taken by O'Neal.
5. There is no "clear and convincing" evidence
supported by the record which shows that the administration
of justice was, in fact, prejudiced or that the public's
confidence was undermined as to the impartial functioning of
judicial officers as a result of O'Neal's public statement.
6. O'Neal's First Amendment rights shields her from
disciplinary sanctions for making a public statement.
A The decision to remove O'Neal from office which is
partially based on her refusal to acknowledge that any
specific action was improper or her refusal to accept personal
responsibility for the difficulties she experienced with the
other elected officials of Peach County, is contrary to prior
decisions of this Court and other courts, and violates the Fifth
Amendment to the U. S. Constitution as applicable to the
states through the Fourteenth Amendment.
8. The will of the people in electing O'Neal and their
right to recall should not be abrogated without "clear and
convincing evidence" that she "intentionally committed
serious and grievous wrongs of a clearly unredeeming
nature."
9. It is fundamentally unfair to punish O'Neal by
removal from office in light of the facts of record, as they
provide sufficient reason to seriously question the due
a me
A35
process accorded O'Neal at the JQC hearing and the
adequacy of the resulting evidentiary record.
10. O'Neal's due process rights as guaranteed by the Fifth
Amendment to the U.S. Constitution as applicable to the
States through the Fourteenth Amendment were violated by
the procedures accorded her by the JQC.
11. O'Neal's counsel was deprived adequate time in
which to prepare a defense in violation of her due process
rights.
12. _—‘ There is a clearly noticeable and substantial disparity,
in relation to the alleged misconduct, between the Supreme
Court decisions in other cases and this Court's decision in
regard to O'Neal; and the record does not support that O'Neal
committed any misconduct of a nature or degree as reflected
in these other cases in which the judge was removed from
office.
13. The decision to remove O'Neal from office is an
unusually harsh judgment when compared to the punishment
rendered in other Supreme Court JQC case decisions
involving more serious allegations of misconduct.
14. O'Neal, as the record demonstrates, has not engaged
in a pattern of improper activity.
15. There is no "clear and convincing" evidence as shown
by the record of any harmful effects occurring as a result of
the alleged misconduct.
A36
16. O'Neal, as demonstrated by the record and the brief in
support of this motion, had a rational legal basis and a
justifiable belief for the actions she has taken while in office.
17. As shown by the record, the petition filed in this
Court, and the brief in support of this motion, O'Neal has not
committed any serious transgressions which would warrant
removal from office.
WHEREFORE, movant moves the Court for an order
setting aside said judgment.
This the 27th day of March, 1995.
Respectfully submitted,
/s/
Pete C. Whitlock
Georgia Bar No. 756235
Attorney for Movant
Bruce S. Harvey
Georgia Bar No. 335175
Attorney For Movant
A37
37IN THE SUPREME COURT
STATE OF GEORGIA
IN RE INQUIRY CONCERNING A JUDGE #94-70
JUDGE LINDA O'NEAL
BRIEF IN SUPPORT OF MOTION FOR
RECONSIDERATION
Judge Linda O'Neal respectfully requests this Court in
light of the following presented facts and arguments to
reconsider its Order that she be removed from office. As
Justice Benham so aptly pointed out in his dissent, "the
drastic action of removing a judge from office is one that
should be taken with great caution and concern." "Judges
should not be subjected to the extreme discipline of removal
except in instances where it is free from doubt that they
intentionally committed serious and grievous wrongs of a
clearly unredeeming nature." In re La Motte, 341 So. 2d 513,
517-18 (Fla. 1977). As will be shown O'Neal never engaged
in conduct that would warrant the extreme discipline of
removal from office. This Court, in its opinion, stated that it
would examine the allegations of misconduct with the
following principles in mind:
"Whether disciplinary action is appropriate,
and the degree of discipline to be imposed,
should be determined through a reasonable
and reasoned application of the text and
should depend on such factors as the
seriousness of the transgression, whether there
A38
is a pattern of improper activity, and the effect
of the improper activity on others or on the
judicial system."
Georgia Code of Judicial Conduct, Preamble (1994).
These same principles will also be considered in the
arguments to be presented. It is further stated in the
Preamble of the Code of Judicial Conduct that
"The Canons and Sections are rules of reason.
They should be applied consistent with
constitutional requirements, statutes, other
court rules and decisional law, as well as in
(Emphasis added).
These principles will likewise be included in the arguments
presented.
1. The Court's opinion with respect to O'Neal's orders of
September 13, 1994, directed to the sheriff and his lawful
deputies now provides the guidance that heretofore was
lacking in Georgia's case law. While the cases as cited by the
Court indicate mandamus is the remedy to be used to require
an official to properly perform his statutory duties, other
cases fairly indicate that a court "is vested with the inherent
power necessary to the administration of justice and ‘with all
necessary authority to efficiently and completely discharge
those duties'." Fathers Are Parents Too, Inc. v. Hunstein, 202
Ga. App. 716 (415 SE2d 322) (1991), quoting Wallace v.
Wallace, 225 Ga. 102, 111 (166 SE2d 718) (1969). This
Court has also stated that inherent power "includes the
authority to perform any function reasonably necessary to
effectuate [the Court's] jurisdiction" and "improve the
administration of justice." In The Matter of Teresa S. Oliver,
261 Ga. 850 (413 SE2d 435) (1992), quoting Wallace, supra.
A39
Further, in McCorkle v. Judges of Superior Court, 260 Ga.
315, 316 (392 SE2d 707) (1992) this passage appears:
In Grimsley v, Twiggs County, 249 Ga. 632,
(1982), we acknowledged that the judiciary, as
an independent and co-equal branch of
government, must possess power that is
concomitant with its duty to the public. See
also Miree v. United States, 242 Ga. 126, 132
(249 SE2d 573) (1978) ("Our powers are
equal to our duties.").
Additionally, when this Court referred to McCorkle,
supra, it noted the following statement in that decision,
"inherent power is not a sword but a shield." Also, in
McCorkle this Court stated, "... [I]nherent power does not
give the judicial branch the right to invade the province of
another branch of government. As a principle flowing from
the separation of powers doctrine, it arms the judicial branch
with authority to prevent another branch from invading its
province." McCorkle at 316. This language brings up a very
interesting legal twist to the situation that O'Neal faced. To
O'Neal and the Magistrate Court, the sheriff and his deputies
were constables, as noted by O.C.G.A. 15-10-3(b)(3)(c) ("In
the case of a ... sheriff or sheriff's deputy serving as
constable"); O.C.G.A. 15-10-27(c) (In any county subject to
this code section ... the sheriff and deputies of civil court
shall serve as constables of magistrate court.); and O.C.G.A.
15-10-100(b) ("If no provision is made for the appointment
of constables, the sheriff and his deputies shall perform the
duties of constables."). Constables are created within the law
governing Magistrate Courts and are officers within the
judicial branch, and are not officers within the executive
branch to which the sheriff and his deputies otherwise
A40
belong. O.C.G.A. 15-10-100(a) provides that, ... "the county
governing authority may provide for the appointment of
constables by the chief magistrate. Constables so appointed
shall serve at the pleasure of the chief magistrate....". With
regard to their power of arrest the law states: "Constables
shall exercise the power of arrest only with a warrant or at the
direction of and in the presence of a magistrate or the judge
of another court." O.C.G.A. 15-10-103. Clearly, constables
are officers of the magistrate court subject to the direction
and control of a judge. Even the language which sets forth
their powers and duties suggest that they are subject to the
direction and control of the judge of the magistrate court.
O.C.G.A. 15-10-102. Thus, there is a rational basis for
O'Neal to have believed that when she issued orders to the
sheriff and his deputies that she was not invading another
branch of government but was issuing orders to court officers
within the judicial branch of government and, therefore, was
not exceeding the principles with respect to inherent power as
set fort in Grimsley v. Twiggs County, 249 Ga. 632 (1982)
and McCorkle, supra. See O'Neal's testimony at [FHT p.
332:14]. Accordingly, pursuant to this analysis O'Neal could
not be guilty of using the Court's inherent power in a power
struggle between the branches, because the sheriff and his
deputies by operation of law wears two (2) hats: one within
the executive and one within the judiciary branch of
government. Notably, O'Neal's orders to the sheriff and his
deputies only included the duties that they were to perform
while they were functioning within the judicial branch as
constables. If this argument is considered to be valid then
Canon 3C(2) of the Code of Judicial Conduct also applies,
which states that
"Judges shall require* their staffs, court
officials and others subject to their direction
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and control to observe the standards of fidelity
and diligence that apply to the judges and to
refrain from manifesting bias or prejudice in
the performance of their official duties."
(Emphasis added).
O'Neal's orders issued to the Magistrate Court's constables,
the sheriff and his deputies, who are "court officials" or
"others subject to [her] direction and control" simply required
diligence in the performance of their constable duties and
thus would be within her authority to issue as mandated by
the Code of Judicial Conduct. Canon 3C(2).
It is quite understandable how a new judge in office,
as in O'Neal's case, could interpret the case law, statutes, and
Code of Judicial Conduct referenced above, coupled with
Art.. VI, Sec. I, Par. III of the Georgia Constitution of 1983
and O.C.G.A. 15-1-3(4) to mean that orders such as she
issued to her constables, the sheriff and his deputies, were
within her authority to issue.
There is no evidence in the record that she issued any
orders before or after this event which exceeded her
authority, so in this regard the record demonstrates no pattern
of improper activity. In fact, the record demonstrates that
since issuing the orders to the sheriff and his deputies, O'Neal
has used the writ of mandamus to require the proper
performance by an official of a statutorily imposed duty. See
JQC hearing Exhibit 168, dated September 26, 1994.
Interestingly, although six months have elapsed, no trial date
has been scheduled to hear that case. Deese testified that he
never served any of the orders [FHT p. 194, 204], and the
evidence in the record indicates no change with respect to the
sheriff and his deputies performance of their duties, so based
on the record the orders actually had no effect on the sheriff
A42
and his deputies. O'Neal submits that the seriousness of the
transgression, being one of mistaking the status of the law,
and given the context of all relevant circumstances, is minor.
Besides, judges make mistakes as to the status of the law
from time to time, but they are not charged with willful
misconduct and removed from office because of the mistake.
This Court found that O'Neal should have disqualified
herself at Deese's rule nisi hearing. However, O'Neal
respectfully requests this Court to consider her reliance upon
the commentary to Canon 3E(1), which states in part:
"The Rule of necessity may override the rule
of disqualification. For example, a judge
might be ... the only judge available in a
matter requiring immediate judicial action,
such as a hearing on probable cause or a
temporary restraining order..."
At the time the hearing was held, O'Neal was the only
Magistrate Judge in Peach County to hear the matter. She
perceived that the improper performance of constable duties
by the sheriff and his deputies was of such a poor degree that
immediate attention to the matter was necessary. See [FHT
p.330-332, 424]. Therefore, when Deese refused to serve or
order another deputy to serve the four (4) orders outlining the
constable duties she considered it necessary to take
immediate judicial action. As explained in her petition to
this Court, she used the rule nisi hearing as a vehicle to give
Deese a direct order to serve the four (4) orders. If O'Neal
misunderstood the Canon and its commentary in regard to
this matter, the sanction for such misunderstanding would
appear to be something far less than removal from office.
A43
The record evidences no other instances before or
after this one occurrence when it is alleged that O'Neal failed
to disqualify herself and circumstances required
disqualification. Therefore, there is no pattern of improper
activity with regard to this matter. Based on the record there
Fas been no effect on Deese because of O'Neal's failure to
disqualify herself. O'Neal respectfully suggests that since
Deese was purged of contempt the seriousness of the
transgression is minor.
This Court noted the JQC factual finding that O'Neal
issued the orders to the sheriff and his deputies, and held the
rule nisi hearing on Deese to intimidate and coerce the sheriff
and his deputies. O'Neal was never charged with
intimidation and coercing or attempting to intimidate and
coerce the sheriff and his deputies and thus she was never
given an opportunity to defend against that specific
accusation, in violation of her due process rights as
guaranteed by the Fifth Amendment to the U. S. Constitution
as applicable to the states through the Fourteenth
Amendment. She respectfully submits to this Court that it is
now unfair to use such a finding to determine that she
committed willful misconduct in office and thereby violated
Canons 2A, 2B, and 3E(1). Notwithstanding this argument,
the record contradicts the JQC finding and instead shows that
the sheriff and his deputies were not intimidated by the
orders and Deese's Rule Nisi Hearing. Deese testified at the
JQC hearing that he told the JQC investigator that he thought
the problems with the Magistrate Court were minor in nature.
[FHT p. 205]. Deese admitted under oath at the JQC hearing,
a year after they were issued, that none of the orders had been
served [FHT p. 194, 204]; and the documentary exhibits of
O'Neal's correspondence and her testimony shows that the
A44
sheriff and his deputies still do not properly perform their
duties with respect to the Court.
yo O'Neal did not obtain felony warrants for the entire
board of commissioners based upon "a clearly unenforceable
threat," as proven by the fact that the board has carried out
the threat and reduced her salary. She received a salary
increase for the month of November, 1994, which included a
supplemental pay increase of $50.46. Her paycheck for the
month of December, 1994, disclosed a supplemental pay
decrease of $50.46, and such decrease has continued monthly
thereafter. O'Neal's affidavit and pay stubs in support of
these facts is attached hereto as Exhibit "A". Georgia Law
prohibits the reduction of a magistrate's compensation or
supplement during any term of office. O.C.G.A.
15-10-23(b). The board decreased O'Neal's salary after the
JQC hearing had occurred, the closing arguments had been
submitted, and the hearing record was established.
Additionally, O'Neal obtained the felony warrants in
reliance upon the mandate of Canon 3B(2) ("Judges shall be
faithful to the law" and "shall not be swayed by partisan
interests, public clamor, or fear of criticism."). She obtained
the warrants on a good faith belief that a crime had been
committed, as the record supports. She believed that her
personal integrity, oath of office, and respect for the law
required her to seek criminal prosecution and that ignoring
the commissioners’ threat would violate Canon 2A ("Judges
shall respect and comply with the law and shall act at all
times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary."). At the time the
threat was communicated to O'Neal the record reflects that
she was not embroiled in a political squabble with the
DED ATK pet PLY EONS OR HONING INF r EY lly VSAM ONR Aa th00
PEELE LAA ONG SO ATER REESE 4s
A45
commissioners, and that a proper relationship still existed
between them.
O'Neal's public statement following the dismissal of
the felony warrants was a good faith informative factual
statement, as supported by the record. Furthermore, there is
not one scintilla of evidence in the record that shows that the
administration of justice was, in fact, prejudiced or that the
public's confidence was undermined as to the impartial
functioning of judicial officers as a result of O'Neal's
Statement. O'Neal asserts that absent clear and convincing
evidence that such harm occurred that her freedom of speech
rights as guaranteed by the First Amendment to the U. S.
Constitution shields her from disciplinary sanctions for
making the public statement. She respectfully further asserts
that the right of the public to be informed as to the truthful
reasons for her official actions is absolute and must be
observed by her because she holds a position of public trust:
Thus, her breach of this public trust would violate Canon 2A.
3. The record demonstrates that O'Neal sincerely and
genuinely believed her conduct to be correct under all the
relevant circumstances. Her refusal to acknowledge any
improper action or to not accept personal responsibility for
the difficulties she experienced with the other elected Peach
County officials is not shown by clear and convincing
evidence in the record to be a refusal made in bad faith.
The Supreme Court of Florida has recently expressed
the following opinion concerning judges who refuse to admit
wrongdoing or refuse to express remorse: "Every judge who
believes himself or herself truly innocent of misconduct has a
right -- indeed, an obligation -- to express that innocence to
A46
the Commission ..." Inquiry Concerning A Judge No. 93-62,
RE: P. Kevin Davey, Supreme Court of Florida (1994).
This Court has also previously made and adopted a
statement with respect to denial of guilt and remorsefulness,
which in part states:
Can it be said that one who denies guilt and,
therefore, is not remorseful for his
wrongdoing has been rehabilitated? The
question is best analyzed and answered by the
logic of In the Matter of Hiss, Mass. 333
NE2d 429, 437 (1975). ‘Simple fairness and
fundamental justice demand that the person
who believes he is innocent though convicted
should not be required to confess guilt to a
criminal act he honestly believes he did not
commit. For him, a rule requiring admission
of guilt and repentance create a _ cruel
quandary: he may stand mute and lose his
opportunity; or he may cast aside his hard
retained scruples and, paradoxically, commit
what he regards as perjury to prove his
worthiness to practice law. Men who are
honest would prefer to relinquish the
opportunity conditioned by this rule ....'
In The Matter Of Mitchell, 249 Ga. 280 (290 SE2d 426)
(1982).
A47
Moreover, it is respectfully submitted that the
decision to remove O'Neal from office which is partially
based on her refusal to acknowledge that any specific action
was improper or her refusal to accept personal responsibility
for the difficulties she experienced with the other elected
officials of Peach County, violates the Fifth Amendment to
the U. S. Constitution as applicable to the states through the
Fourteenth Amendment.
4, One of the most basic organic rights of the citizens of
Peach County was expressed when they unseated a sixteen
year incumbent and replaced him with Linda O'Neal. O'Neal
respectfully asserts that it is the voters of Peach County who
ought to decide her fate in office, just as they recently did
with respect to Commissioner Jack Taylor who was a witness
and testified at the JQC hearing against O'Neal. Taylor was
defeated in all four precincts and on the absentee ballots
reportedly by a substantial 168 votes out of a total of 870
votes in a special election held on February 7, 1995. One of
the principal issues in that election was the complaint that he
participated in and filed against O'Neal with the JQC.
Moreover, O'Neal as an elected official is subject to recall by
the voters of Peach County. Her removal from office will
result in an interim appointed magistrate to fill the office
vacancy and that magistrate will not be subject to recall.
Therefore, the will of the people in electing O'Neal and their
right to recall should not be abrogated without "clear and
convincing evidence" that she "intentionally committed
serious and grievous wrongs of a clearly unredeeming
nature." In re La Motte, supra. The record simply does not
support such a finding.
A48
5. At the JQC hearing O'Neal attempted to introduce
into evidence indication of positive community support for
her as Chief Magistrate Judge of Peach County. Over eighty
(80) individuals either wrote letters, signed petitions, or
completed favorable court questionnaires, which serve to
significantly counter and offset the apparently solicited
fifteen complaints filed against O'Neal. Copies of this
evidence is attached hereto as Exhibit "B". The JQC refused
to allow admission of this evidence on the basis that it had
not been presented at the pretrial conference. [FHT p.
386-387]. However, counsel with less than 24 hours notice
that he would be responsible for appearing for O'Neal at the
pretrial conference on September 27, 1994, was not aware of
the above evidence. The quantum of evidence in the case
(hundreds of pages of documents and over 450 deposition
transcript pages) made it impossible for him to become
adequately familiar with all of the evidence in such a short
period of time. Counsel advised the JQC on September 29,
1994, at the beginning of the hearing that his short exposure
with the case caused him to believe that he would not be able
to adequately represent O'Neal. [FHT p. 11-17].
Nonetheless, counsel's request for a continuance was denied
and O'Neal was forced to proceed. The JQC offered to
continue the hearing if O'Neal would take a leave of absence
from her office during the continuance. Such a coercive offer
was not acceptable to O'Neal and she declined the offer.
Additionally, O'Neal's motion for directed verdict presented
at the close of the commission's case in chief was denied by
the presiding hearing officer without presenting it before the
entire commission in violation of Rule 1(b) of the Rules of
the Judicial Qualifications Commission. [FHT p. 289, 296].
Such ruling was a ruling on the merits of the case and by the
commission's rules a majority of its membership was
required. Accordingly substantive error resulted and denied
A49
O'Neal due process. It is fundamentally unfair to punish
O'Neal by removal from office in light of these facts, as they
provide sufficient reason to seriously question the due
process accorded O'Neal at the JQC hearing and the
adequacy of the resulting evidentiary record.
6. In O'Neal's petition objecting to the JQC's Findings
and Recommendations and in this brief several issues have
been raised that put into question the adequacy of the JQC
procedures accorded O'Neal in regard to her Fifth
Amendment due process rights as applicable to the state
through the Fourteenth Amendment. As this case
demonstrates there are gross violations of fundamental
notions of due process, which occur as a consequence of the
JQC being investigator, prosecutor, and trier of fact of
judicial complaints. In support of this contention O'Neal
turns to recent developments in the State of Florida. Florida
has recently decided that their JOC process, which is similar
to Georgia's, is lacking in the area of due process as required
by the U. S. Constitution. The Florida Bar Board of
Governors, including members of the combined Bench/Bar
Commission, have voted unanimously (28 to 0) to bifurcate
the JQC. Copies of articles in the Florida Bar News which
address this subject is attached hereto as Exhibit "C".
A A survey of twenty five (25) past JQC cases that
reached the Supreme Court was undertaken to compare the
Supreme Court decision in each of those cases to the decision
this Court has made with respect to O'Neal. A copy of the
survey is attached hereto as Exhibit "D". There is a Clearly
noticeable and substantial disparity, in relation to the alleged
misconduct, between the Supreme Court decisions in the
other twenty five (25) cases and this Court's decision in
regard to O'Neal. The record does not support that O'Neal
A50
committed any misconduct of a nature or degree as reflected
in these other cases in which the judge was removed from
office. Indeed, the record does not even support that O'Neal
committed any misconduct as serious as that reflected in
most of the other cases in which the judge was suspended,
and in some cases only reprimanded.
8. To further demonstrate the abusive political powers to
which O'Neal has been subjected, it should be noted that
immediately following the issuance of this Court's decision,
the Judges of the Superior Court of the Macon Judicial
Circuit issued an ex-parte order authorizing the Board of
Commissioners to take possession of all court papers and
county property currently located in the office of the
Magistrate Court. A copy of said order is attached hereto as
Exhibit "E". A strikingly noticeable aspect of the order is
that the board of commissioners, a separate branch of
government, was being authorized to take possession of
judicial property. | Additionally, Charles Bartlett, the
commission chairman advised William Cooney, deputy court
clerk, on Monday, March 20, 1995, that he was being placed
on leave and that he had to leave the courthouse. A copy of a
letter which was given to Cooney at the time he was placed
on leave is attached hereto as Exhibit "F". Further, the
county marshal threatened Cooney that if he did not leave the
courthouse that he would be arrested for failure to obey a
lawful order.
As shown by the record, the petition filed in this
Court, and this brief, O'Neal had a rational legal basis and a
justifiable belief for the actions she has taken while in office.
A51
Based on the foregoing presented facts and
arguments, and in light of the lessor disciplinary action taken
in the majority of the other cases shown in Exhibit "D", It is
respectfully requested that this Court reconsider its decision
to remove Judge Linda O'Neal from office.
This the 27th day of March, 1995.
Respectfully submitted,
/s/
Pete C. Whitlock
Georgia Bar No. 756235
Attorney for Movant
Bruce S. Harvey
Georgia Bar No. 335175
Attorney For Movant
A52
A53
53IN THE SUPREME COURT
STATE OF GEORGIA
IN RE INQUIRY CONCERNING A JUDGE #94-70
JUDGE LINDA O'NEAL
Comes now, the Petitioner, Linda O'Neal, Chief Magistrate
Judge of Peach County, Georgia, by and through her
attorney, Bruce S. Harvey, and petitions the court to overrule
the FINDINGS AND RECOMMENDATIONS of the
Judicial Qualifications Commission which has recommended
to this court that Petitioner be removed from office, and to
dismiss all charges filed against her by said commission, and
in support of her petition Petitioner respectfully shows the
court the following:
BRIEF IN SUPPORT OF PETITION
I
STATEMENT OF THE CASE
A. Nature Of The Case
This matter - involving disciplinary action to remove
Petitioner from her elected judicial office - is a case of gross
mischaracterization and misstatement of the facts and is a
reckless misrepresentation of truth. Indeed, one of the most
A54
alarming and troubling aspects of the FINDINGS AND
RECOMMENDATIONS of the Commission, as the evidence
clearly shows, is the gross failure to report a straightforward
accounting of the facts as they actually occurred.
Accordingly, the motivations behind this matter are
seriously questioned by Petitioner. Careful analytical
scrutiny of the evidence will reveal that the verbs, adverbs,
and adjectives selected by the author of the Commission's
report are so venomous and so grossly overstate Petitioner's
conduct that the impartiality of the proceedings must be
questioned. Due process calls for a thorough review of the
record by this court.
Reportedly, this matter arose upon the receipt by the
Commission of a total of fifteen complaints submitted by
citizens of Peach County, after news stories publicized that
all five County Commissioners were arrested on a felony
warrant requested by Petitioner. Subsequent to his arrest,
Charles Bartlett, Chairman of the Peach County Board of
Commissioners, filed a complaint with the Commission
against Petitioner.
B. Course Of Proceedings
Petitioner was first notified of this matter by letter
dated January 10, 1994. The Judicial Qualifications
Commission instructed her to meet with the Commission on
Friday, January 28, 1994.
Petitioner met with the Commission as directed;
denied the allegations made against her, both orally and in
writing; and stated unequivocally that she had at all times
adhered to the highest standards of judicial conduct. .
[R.44-45].
Following this conference and by letter dated January
31, 1994, Petitioner received notice that the Commission had
voted to investigate the complaints filed against her.
A55
Petitioner sent a letter to the Commission, dated February 11,
1994, wherein she adopted and incorporated by reference her
letter of January 28, 1994, and again denied any willful
misconduct in office or any conduct prejudicial to the
administration of justice which might bring the judicial office
into disrepute. [R.48].
A Notice of Formal Proceedings was subsequently
received by Petitioner, dated March 31, 1994. [R.49-53].
On or about May 4, 1994, Petitioner's Answer to the
Notice of Formal Proceedings generally denied all allegations
and contained numerous special defenses. [R. 55-65].
A pre-hearing conference was scheduled for
September 27, 1994, by Judge Hugh Lawson, the Judicial
Commission member designated by the Chair to preside in
this matter.
Immediately prior to the scheduled pre-trial
conference, Petitioner filed in this Court an emergency
motion for a continuance of the scheduled pre-trial
conference, as well as the Formal Hearing then scheduled to
begin on September 29, 1994. [R. 82-87]. This Motion was
opposed by the Commission [R. 88-117], and by order dated
September 26, 1994, such Motion was denied without
opinion. [R.118].
The matter was subsequently heard by the full
Commission on September 29, 1994 and September 30,
1994.
At the outset of the Formal Hearing, Petitioner's
Motion to Recuse [R. 119-123] and her oral motion for
continuance were denied. [FHT 1-18].
At the conclusion of the Formal hearing, counsel were
directed to submit written arguments.
A56
C. Disposition Bel
On December 9, 1994, the Commission issued its
FINDINGS AND RECOMMENDATIONS and
recommended that Petitioner be removed from office.
Il
STATEMENT OF FACTS
A. General Statement
From the day before Petitioner took office, when the
lame-duck Board of Peach County Commissioners, as
punishment, reduced her salary to the statutory minimum of
$13,125 per year [FHT p. 129], until the day the newly
configured Board of Peach County Commissioners, in
violation of both the civi]_and criminal laws of this State,
threatened to rescind the salary increase they had previously
granted to her, Petitioner has admirably withstood the
onslaught of an inept, lethargic, inefficient and sometime
punitive Board of Commissioners in complete control of the
power of the purse. Petitioner, unlike probably any other
Magistrate in the State of Georgia, has found herself - a duly
elected judge by the constituents of Peach County - held
economic hostage to the purse strings of the Board of
Commissioners; yet bound by the stringent requirements of
the Cannons of Judicial Conduct, a Code of Judicial Conduct
which she holds in high esteem, interprets literally, and has
faithfully followed.
Petitioner was asked by citizens of Peach County to
run for office amid ‘allegations of corruption and
mismanagement. Once deciding to run for office, Petitioner
ran her political campaign on a political platform against
government corruption and in favor of change. Petitioner, in
A57
a contested election, unseated a 16-year incumbent, George
Harris, who himself had been brought before the Judicial
Qualification's Commission amid allegations of fiscal
corruption in the Magistrate Court. From her first day in °
office, Petitioner has found herself in the unenviable position
of repeatedly requesting even the most fundamental of
supplies to efficiently discharge her administrative
responsibilities, including but not limited to, obtaining the
return of items looted from the Magistrate Court during the
waning days of the prior administration; obtaining the alarm
code which would enable her to get into her office on
weekends to fulfill her constitutional duties with respect to
the presentment of prisoners; obtaining staff support
sufficient to conduct the business of the Magistrate Court;
obtaining working chairs in which visitors to the Magistrate
Court can sit; obtaining pens and pencils, paper, and paper
clips; curtains for curtain rods; and obtaining a working air
conditioner. As if it were not enough that a sitting judge
would have to repeatedly request such information and/or
supplies from the powers that controlled the purse, but often
these items were never provided to her or were provided
months after they were requested. For example, Petitioner,
sought return of the items taken from her office by the prior
administration in letters dated January 4, 1993, April 19,
1993, May 17, 1993, May 31, 1993, June 2, 1993, and June
14, 1993. [See respectively Ex. 1, 2, 15, 19, 22, 23, 25, 29].
Petitioner sought a break down of the Magistrate Court
budget in letters dated May 3, 1993, May 24, 1993, June 14,
1993, July 12, 1993, July 28, 1993, August 23, 1993, and
November 8, 1993. [See respectively Ex. 16, 17, 20, 30, 40,
53, 61 and 97]. Petitioner has repeatedly expressed her
concern over courthouse security in letters dated June 14,
1993, July 6, 1993, July 24, 1993, and August 23, 1993. [See
respectively Ex. 31 (page 2), 39, 50, 59, and 62]. Does harm
A58
to a magistrate or employee have to occur before such money
is allocated? Petitioner has repeatedly told members of the
County Commission that she needs more employees or larger
salaries for her present staff because the prior administration
had six (6) employees and she has three (3) performing a
larger workload in letters dated June 14, 1993, July 12, 1993,
September 3, 1993, November 8, 1993, November 8, 1993,
November 12, 1993 (two letters), November 22, 1993, and
June 6, 1994. [See Ex. 33, 43, 69, 98, 99, 100, 102, 105, and
131]. Should the County Commissioners be allowed to
prevent the Magistrate Court from functioning by refusing to
adequately staff the Court? Petitioner has gone so far as to
use her own personal computers and personal money to
purchase security and necessary supplies precisely because
the Commissioners have refused to issue purchase orders for
these items. [FHT p. 313; Ex. 3 (page 6), 38, and 60].
B. As Stated The Evid in S | of the Findi
Misrepresents the Truth
As outlined by the Notice of Formal Proceedings the
allegations as stated in support of the charges and the
evidence used to support the Commission's subsequent
findings grossly mischaraterizes and misstates the facts as
evidenced by the record. Petitioner's untangling of the
allegations and twisted facts will reveal a professionally
dutiful, fair, honest, and ethical judge, who is most worthy of
the judicial office to which she was elected.
The voluminous record of 168 exhibits assembled by
the Commission has been reduced into three (3) easy to
review and informative table summaries by Petitioner, and
are attached to this Petition and Supporting Brief as
Appendices A (Summary of Plaintiffs Exhibits), B
(Summary of Plaintiffs Exhibits - Petitioner's
A59
Correspondence With Board of Commissioners), and C
(Summary of Plaintiffs Exhibits - Petitioner's
Correspondence With Sheriff). These appendices accurately
summarize Plaintiff's exhibits by their hearing record exhibit
number and provide a quick reference to this otherwise
lengthy and burdensome part of the record. Reference to an
appendix summary will hereinafter be cited as [Appendix _
(appropriate letter designation)].
(1.) Magistrate Court: The Lack Of
c ‘ion F Other County Official
The Commission's declaration that Petitioner has
been at war with almost every other elected official in Peach
County has put the proverbial cart before the horse and
grossly mischaracterized the facts. There would never have
been any difficulties with the Sheriff and County
Commissioners if they had met only the minimum "literal
requirements of the law". Specific treatment of these matters
will be more fully discussed below, but generally speaking,
Petitioner has been required again and again to cite for the
County Commissioners and Sheriff what are the literal
requirements of the law. In spite of such counseling, the
members of the County Commission and Sheriff's
Department have continued to either ignore the literal
requirements of the law or to openly perform acts in violation
of them. If Petitioner in her dealing with the Sheriff's
Department has brought disrepute on her Court - which she
vehemently denies - by requiring that its duly appointed
officers comply with the minimum requirements of the law
then so be it. Petitioner apparently finds herself between a
rock and a hard place in "diligently discharging] [her]
administrative responsibilities" under Canon 3(C) and
dealing with a system resistant to compliance with either
A60
efficiency of service or the literal requirements of the law.
Should she be punished for faithfully and enthusiastically
following Canon 3(C)?
(2.) Petitioners Correspondence
The Commission's statement that Petitioner made
repeated and almost continuous demands on various county
officials substantially mischaracterizes the truth. No doubt
Petitioner has written many letters. Petitioner is a product of
business where you are taught to put everything in writing to
document issues and requests. [FHT p. 305-306; See
Appendices A, B, &_C]. Petitioner has written letters to the
Sheriff, the Board of Commissioners and _ their
Administrative Clerk. Every letter written by Petitioner to
the Board of Commissioners involves a subject germane to
either the administrative or judicial functioning of the
Magistrate Court. All requests for supplies, information, and
reimbursement by Petitioner were requests for fundamental
items necessary for the basic functioning of the Magistrate
Court, and Petitioner has been forced to re-request the same
information and/or supplies over and over again. [FHT p.
317-318]. The letters speak for themselves. The letters are
not "imperious and demanding in tone" [FHT p. 137],
although after requesting the same information sometimes
five and six times they should be demanding and imperious.
In contrast, see letters from the Commissioners, Exhibits 73,
85 where the snide language of power pours fourth: "Where
did you ever get the impression that your salary should be
based on that of any other employee of the county" and "We
regret that you didn't see fit to attend our meeting today".
Finally, see the unsigned, open letter of the Board of
Commissioners [Ex. 85 p. 2, 3] read to the news media in a
(Srinish txt ni doeed as de tind aah asda, Pe s
A6él
called meeting of the Board of Commissioners. Also, see
Petitioner's measured response in Exhibit 87.
(3) Petiti 's Orders to Sheriff and hi
Lawful Deputies
Petitioner is accused of intentionally misusing
judicial power in issuing a set of four (4) orders to the sheriff
and his lawful deputies. The Commission contends that
Petitioner issued identical orders to each and every employee
of the sheriff's department, regardless of the position held by
such employees, which were beyond the power and authority
of a Magistrate to issue, and that there is absolutely no
evidence in the record that the sheriff's department had ever
refused to serve and/or deliberately delayed the service of
any papers issuing from the Magistrate Court. Each and
the following review of the record. A review of the four
orders [Ex. 71] shows that each order is separate and distinct
and reflects one of the four (4) Statutory powers and duties of
constables, as outlined in O.C.G.A. 15-10-102, which apply
to the sheriff and his deputies when the county governing
authority has not provided for the appointment of constables,
pursuant to O.C.G.A. 15-10-100. Here we have the first of
numerous instances of where the facts were misstated by the
Commission. On cross-examination Deputy Deese testified
that the orders were not identical, that they were separate
orders in every file [FHT p. 202]. The orders clearly read
that they were issued to only the sheriff and his lawful
deputies, and not to any other employee within the sheriff's
department.
The reason that fifty six (56) file folders for 56 named
employees were sent to the sheriff's department, as explained
by Petitioner, was because she did not know which of the
A62
employees were deputies. [FHT p. 330; p. 336, and p. 401]
Petitioner's testimony in this regard was corroborated by
Chief Deputy Deese's testimony [FHT p. 202-p. 203]. Even
though the orders on their face were not issued to any
employee, except the sheriff's lawful deputies, and the
testimony of both Petitioner and Deputy Deese indicate that
Petitioner did not know who were deputies, the Commission
would still have this Court believe that Petitioner was
attempting to usurp some power over the other employees of
the sheriff's department. Once again, the Commission's
report is less than candid with the facts.
Each Court may exercise such Constitutional judicial
power as necessary in aid of its jurisdiction or to protect or
effectuate its judgments. The Constitution of the State of
a Every Court has
tatutory authority to control the conduct of its officers,
pi to the provisions of O.C.G.A. 15-1-3. Accordingly,
within reason it does appear that Magistrate Judges do have
the power to issue Orders proscribing conduct of its court
officers for the proper functioning of their courts. Not only
do Magistrate Court judges have the power to issue such
Orders but judges are ethically bound under the Code of
Judicial Conduct Canon 3(C)(1) and (2) [Formerly 3(b)(1)
and (2)], to maintain order and diligently discharge their
administrative responsibilities and to require similar conduct
of their staff and court officials.
The four (4) Orders specifically address Petitioner's
concern over security in her courtroom, the delay in serving
warrants and other papers by the Sheriffs Department, and
delay in the Sheriff's department in turning over money “* the
Magistrate Court. [FHT p. 330-35, Ex. 31, 36, 50, 59, 68, 88,
93, 94, 121, 117, 123, 129, 130, 132, 133 (See discussion),
134, 137, and 139]. Many of the exhibits are replete with
examples of the continuing failures by the Sheriff's
iad ale iat Og (i
A63
Department to fulfill its statutory duties which in turn
prevented the Magistrate Court from functioning properly.
[See Ex. 68, 88, 93, 94, 95, 96, and 133].
An astounding list of factual statements showing that
the sheriff and his deputies have failed to perform their duties
with respect to the Magistrate Court is set forth in Petitioner's
verified complaint filed against the Board of Commissioners
of Peach County [Ex. 168 p. 7-11]. Yet, given the enormous
amount of facts evidencing the sheriff's department failure to
properly provide service to the Magistrate Court, the
Commission would have this Court believe that the sheriff
was performing his duties and the Petitioner was misusing
her judicial power when she responded to such nonfeasance,
malfeasance, and misfeasance. After experiencing for over
eight months, since her term of office began, the lack of the
service required for the proper functioning of the court,
Petitioner issued the orders to the sheriff and his lawful
deputies. [Ex. 168 p. 10 para. 54]. They were merely a
remedial form of notice, outlining the sheriffs and his
deputies general statutory duties with regard to the
Magistrate Court. Under the circumstances at the time they
were issued they were nothing more than a prudent attempt
by a dutiful judge to make her court officers aware of their
official responsibilities.
(4.) Deese Rule Nisi For Civil C
Petitioner sent the Orders to Deputy Deese at the
Sheriffs Department to serve because the Sheriff was on
vacation, therefore, Deputy Deese was responsible for
performing all the duties of the Sheriff. (FHT 195). Further,
Deese was required by law to serve such Orders in the
Sheriff's stead. First, Deese told Petitioner that he was
ing the Orders. a few days later he advised her that |
A64
had not served any of them. Deputy Deese, as he admitted
under oath, lied to Petitioner when he told her that he had
served some of the Orders when in fact he had made a
conscious decision to refuse to serve the Orders until the
Sheriff was back from vacation. [FHT p. 201, 202, 337].
Deputy Deese even makes the admission, under oath, that he
felt by telling Petitioner that he was not serving the Orders
that he would have been charged with contempt. [FHT p.
201]. There was no deputy sheriff in the county willing to
serve the court's Orders on Deese so he was eventually
served with a copy of the four (4) orders by Magistrate Court
Deputy Clerk, William Cooney, who was appointed a pro
tempore special officer, pursuant to O.C.G.A. 15-13-10. [ Ex.
82]. Because Deputy Sheriff Terry Deese refused verbally
over the telephone to serve the Orders on the other deputies
as he was required by law to perform, he was served with a
Rule Nisi and ordered to appear at a hearing to determine
whether he should be held in Civil Contempt. This event was
precipitated by the fact that Petitioner had issued these orders
which restated existing Georgia Law precisely because of the
failure of the Sheriff's department to perform these duties.
Petitioner at the contempt hearing again ordered Deputy
Deese to serve the Orders which to this day he has refused to
perform. [FHT p. 204]. In spite, of his dishonesty and in
spite of his continuing blatant refusal to perform the lawful
duties of a Deputy Sheriff, Petitioner "purged" Deputy Deese
of any Civil Contempt, after ordering him from the bench to
serve the orders on those deputies not present at the hearing,
which was attended by most members of the Sheriff's
department. Petitioner ruled from the bench. [FHT p. 203,
342-343]. Since most members of the Sheriff's Department
voluntarily attended the hearing [FHT p. 194; Ex. 167], and
since it was Petitioner's purpose in the first place to only
make sure that the Sheriff's deputies were aware of their
A65
official responsibilities with respect to the court, she had each
of them give their names, after which she verbally issued the
four (4) Orders to them.
When the Commission said, "when said orders were
not served promptly enough to satisfy the Respondent, she
issued a Rule Nisi to the Chief Deputy Sheriff for civil
contempt", it was again misleading this court by
mischaracterizing the facts. In fact, it is reasonable to
conclude that Petitioner's conduct demonstrates substantial
judicial patience and tolerance, especially after her court had
suffered eight (8) months from the negative effects of the
deficient service by the sheriff's department - deficient
service that the sheriff readily admitted under oath. [FHT
p.150, 151}.
Petitioner has been criticized by the Commission for
denying a motion to recuse filed by counsel for the accused;
acting as both prosecutor and judge; and for failing to follow
the procedures as outlined in Dowdy v. Palmour, 251 Ga.
135, in order to meet due process requirements. First,
counsel for the accused failed to present an affidavit in
support of his motion to recuse, thus, Petitioner properly
denied the motion. [Ex. 167]. Second, it is proper procedure
for a judge to singularly hear civil contempt matters, and
such is done every day in courts throughout this State. Third,
the procedure outlined in the Dowdy case presupposes the
possibility of some form of punishment being meted out by
the court, and is relative to criminal contempt cases. Deese
was never in jeopardy of such punishment, .e..,
admonishment, fine or jail. This was a civil contempt
proceeding in which the Rule Nisi was used as a vehicle to
bring him before the court, so that the remedial procedure of
giving him a direct order from the bench could be
accomplished. Petitioner asserts that under such
circumstances Dowdy is not applicable. Instead of indicating
A66
a judge who misuses the power of her office, such application
of a remedial cure to a long-standing problem, disobedience
of its court officers, suggests a judge with a reserved and
thoughtful temperament. Furthermore, to deny any court the
prudent use of such remedial power would invite civil
anarchy by its court officers and disrespect for its judicial
authority.
(5.) Poole Rule Nisi For Criminal Contempt
After it became obvious to Petitioner that no deputy
was going to serve the sheriff with a copy of the orders,
Petitioner called upon the coroner to serve the sheriff.
Petitioner gave him an order to serve the Sheriff [FHT p.
338-339, Ex. 81] and a copy of the four orders to serve on the
Sheriff. [Ex. 71]. Coroner Poole, much like the County
Commissioners, received incorrect legal advise and, acting
on that advise, refused to serve the Sheriff with the Orders.
Under Georgia Law, O.C.G.A. 45-16-8, the coroner is
authorized to serve the sheriff when the sheriff or his deputy
refuses to serve a writ or other process. When Petitioner
attempted to explain to the Coroner the procedure for serving
a sheriff in Georgia, Coroner Poole stormed out of the
Magistrate Court refusing to serve anything, saying, "1 am
not serving anything you say, I don't have to". [FHT p. 338,
339; Ex. 75, 77]. Petitioner, thereafter, issued a Rule Nisi for
a criminal contempt hearing with regard to Coroner Poole for
his willful disobedience to a lawful order of the court. There
was no deputy sheriff in the county willing to serve the
court's papers on the coroner so the rule nisi was served on
Poole by Brooks Livingston, who was appointed a pro
tempore special officer, pursuant to O.C.G.A. 15-13-10. [Ex.
78]. On September 23, 1993, after Deese's rule nisi hearing,
Petitioner called the Sheriff and arranged a meeting between
A67
them to discuss the service the Sheriffs department was
providing the court. At the meeting which was held that
same day, the Sheriff agreed to solve the problems if
Petitioner would continue or cancel the Coroner's nule nisi
hearing scheduled for September 24, 1993, at 4 p.m.
Petitioner, in good faith, issued an indefinite stay with
respect to Poole's hearing and instructed her deputy clerk the
next morning to call Coroner Poole and advise him of the
stay. [FHT p. 341-342]. At that time no attorney had entered
an appearance on behalf of the Coroner. [FHT p. 342]. The
contempt rule nisi hearing having been indefinitely stayed,
Coroner Poole, was not then, nor has he ever been, held in
contempt. [FHT p. 342; Ex. 86]. Much of this is in sharp
contradiction to the summary of evidence in support of the
Commission's FINDINGS. Certainly, these facts do not
describe an unreasonable or uncooperative judge who abuses
her power, but they do make one wonder about the conduct
and motivations of some of the other elected officials in
Peach County.
6.) £ Decades latiniAetion O66
Some events that lead up to the subject act of the
attempt to intimidate Petitioner, which have not as yet been
discussed may, when accurately detailed, shed some
additional perspective on the matter. October 1, 1993, was
the beginning date for the 1994 budget. For months
Petitioner had tried in vain to obtain the necessary
information from the Board of Commissioners so that she
could make an intelligent and sensible budget presentation to
the Board. [Ex. 16, 20, 21, 30, 40, 53, 61, 57, 69]. All
requests for information or assistance were totally ignored.
[See Exhibit Summary, Appendix B ]. On September 15,
1993, Petitioner requested that she be given an annual salary
A68
increase in the next budget. [Ex. 72]. On September 20,
1993, Petitioner's request for a salary increase provoked an
unusually quick response by Chairman Bartlett in the form of
a notably sarcastic letter. [Ex. 73]. On September 22, 1993,
the County Commissioners wrote to Petitioner and asked her
to meet with them at a called meeting on September 24,
1993, at 4 p.m., which concerned "the office of Magistrate
Judge". [Ex. 83]. Again, the Commission misstates the facts
in their evidentiary summary, which states that Petitioner
refused to meet with the County Commissioners. Petitioner
in a response on September 22, 1993, simply requested an
adequate notice so that she could properly prepare for the
meeting - she did not refuse to attend the meeting. [Ex. 84].
(7.) The Intimidation Of The Court By TI
Board OfC ee
The letter that was read at the meeting called on
September 24,1993, before an assemblage of newspaper and
television reporters [FHT 127], and subsequently mailed to
Petitioner is at the root of the instant matter. [Ex. 85]. The
letter was read publicly the day after Petitioner held Deputy
Deese's rule nisi hearing for civil contempt and immediately
after the hour scheduled for Coroner Poole's rule nisi hearing
for criminal contempt, which Petitioner indefinitely stayed.
[Ex. 86]. The letter itself states the primary reasons for its
creation and delivery to Petitioner, which in pertinent part
reads:
...The last straw was your recent group of
memos to Sheriff‘Becham where you ordered
him to do certain things. If you have a
problem with the Sheriff, it is your
responsibility to get with him and work out
A69
whatever the situation requires- and not to just
serve papers on him. In addition, you have
brought contempt charges against his deputy
and against the County Coroner. This is not
the way to establish a good working
relationship with people... [Ex. 85].
The threat aspect of the letter reads:
...We have decided to give you 30 days to see
if you can get your act together. If you
continue with your present attitude, causing
problems and conflict in the county
government, we will have no choice but to
recind your salary increase and return you to
the original salary granted to you by the
previous commissioners... [Ex. 85].
A reasonable person could conclude just from a
reading of the letter, as Petitioner did, that the County
Commissioners were attempting to influence Petitioner's
conduct with regard to the Court's Orders and the contempt
proceedings . However, there is even stronger evidence that
this is so. In his testimony before the Commission,
Chairman Bartlett testified that he met Coroner Poole to
discuss Poole's pending rule nisi hearing for criminal
contempt. [FHT p. 77]. After he met with Coroner Poole,
Bartlett testified that, "[I] felt like at that point something
had to be done and the commissioners got together and
decided that we needed to see what we could do". [FHT p.
77). Bartlett then testified that, "I checked with our attorney
and the county attorney advised me that since we had
increased her pay, we could decrease her pay. So we wrote a
letter to her...". [FHT p. 78]. Further, Bartlett was asked,
"When did you all decide you were going to do this?" And
A70
Bartlett answered, "This was , as I recall, almost immediately
after she brought the contempt charges against Mr. Poole and
then would not come into the courtroom.” [FHT p. 126-127].
Bartlett also admits, under oath, that the County
Commissioners were trying to use their economic leverage to
change Petitioners conduct. [FHT p. 133-134].
ee a ee ee ‘udicial decisi id
functioning of her office by the County Commissioners'
September 24, 1993 letter [FHT p. 349, 412, 438], and had
the Commissioners been legally able to reduce her salary
they would have done just that. It was not until the County
Commissioners’ counsel changed his legal opinion that the
threat to reduce Petitioner's salary did not become a reality.
[FHT p. 259].
The County Commissioners admit that they acted on
incorrect legal advise in deciding to reduce Petitioner's
salary. [FHT p. 261-262]. Furthermore, they did not act in
"good faith", even though they got bad legal advise. Not
only had Commissioner Bartlett met with the County
Attorney seeking legal advise on whether they could vote to
reduce Petitioner's salary prior to issuing the September 24th
letter, but in Commissioner Jack D. Taylor's deposition, he
stated unequivocally that the purpose behind threatening to
reduce Petitioner's salary was to "punish" Petitioner.
[Deposition of Jack Taylor 59, 60]. Mr. Taylor, of course,
denied making this statement in the hearing before this
Commission stating instead that the purpose of the threat was
that he hoped "harmony should prevail". [FHT p. 259]. On
the other hand Bartlett did note that the decision by the
previous Board of Commissioners to reduce Petitioner's
salary after she was elected, but before she took office, was a _
"political" decision. [FHT p. 129].
A71
(8.) Petitioners Response To Letter Threatening
Petitioner responded initially to the County
Commissioners September 24th letter by indicating in her
letter of September 27, 1993, that she was reluctant to
comment on the matter unless it was official action by the
board. She did refer to the letter's content as diatribe which,
in fact, accurately described the letter. Webster's dictionary
defines diatribe as meaning: 1. a prolonged discourse, 2. a
bitter and abusive speech or writing, 3. ironical or satirical
criticism. [Ex. 87].
For some unknown reason relative to this time period,
the Commission makes a point to state that "after the
September 27, 1993, letter, Respondent always signed her
correspondence over the title "The Honorable Linda O'Neal".
[citing Ex. 87 forward]. But as usual the Commission was
wrong in their statement of the facts. Although restrained to
stay within the record, Petitioner can and does offer Exhibit
70, a letter dated September 13, 1993, for proof that the
The Commission states that 'nowhere in ... this record
is there any mention of the alleged "threat" which
subsequently gave rise to the felony warrants’. This is not a
true statement. The Commission's own Exhibit 160, news
articles, indicates that newspapers perceived the County
Commissioners’ September 24th letter as communicating a
"threat".
(9.) The Issuance Of Arrest Warrants Against
The County C a
Following receipt of the letter by the Board of
Commissioners which threatened to reduce her salary to the
A72
statutory minimum unless she "got her act together",
Petitioner did not "act out of personal animosity and anger"
and have the Peach County Commissioners arrested, but
rather, she felt the Commissioners were trying to "control the
court and the actions of the court" and tell her "how to run
the court". [FHT p. 349, 355]. Instead of acting out of
animosity and anger, Petitioner consulted the law books to
determine whether the action by the Board of Commissioners
was legal; asked the Board if the resolution adopting the
letter was official Board action - which they affirmed [FHT
p. 132, 351]; contacted her District Attorney, Mr. Sparks
[FHT p. 355-357]; contacted Judge Hughes of Twiggs
County [FHT p. 357-359]; talked to Danny Porter, a District
Attorney from Gwinnett County whose name was chosen
from the phone book [FHT p. 357-358]; talked with Judge
Judy Cooper from Clay County [FHT p. 359]; called Judge
Kendall Jordan in Hart County and faxed him information
[FHT p. 359-361]; faxed the affidavit in support of the arrest
warrant to Wayne Purdom, the President of the Magistrate's
Counsel [FHT 359-360]; called the Attorney General's Office
[FHT p. 361-362], and spoke to Judge Burke from Houston
County [FHT p. 362]. Of the several individuals Petitioner
contacted and consulted or tried to contact with respect to the
criminal nature of the September 24th letter, some did not
respond, some who agreed that a crime had been committed
had no authority to issue criminal warrants, and all judges
who had the authority to issue criminal warrants and who
agreed that a crime had been committed refused to issue
criminal warrants because of political ramifications [FHT p.
358, 359], with the exception of one. That Judge, Judge
Kendall Jordan of Hart’ County, issued the warrants. The
Commission gives the impression that those who refused to
issue warrants did not really agree that a crime had been
committed or that Petitioner was not truthful in her
A73
testimony, and they accomplish this impression by making
the statement, "all refused to issue the requested warrants".
; ' a The
Commission would lead one to believe that Petitioner sought
out a personal friend to issue the warrants, but she did not.
[FHT p. 364]. Instead, she correctly sought a neutral and
detached magistrate judge to review the matter and issue any
justified warrants. [FHT p. 359, 426]. Judge Jordan found
that sufficient probable cause existed to believe that the
County Commissioners had violated O.C.G.A. 16-10-97 and
issued the warrants. As Judge Kendall Jordan noted in his
deposition, he did not even recognize Petitioner when she
came in his door. [Deposition of Jordan, p. 22]. Judge
Kendall Jordan felt comfortable signing the warrants after
reviewing the law precisely because Petitioner "had waited a
period of time. It wasn't like it happened yesterday, this
afternoon, or the day before yesterday and I want a warrant
today". [Deposition of Jordan, p. 19]. To her credit,
Peiitioner did wait two months before seeking warrants, as
Judge Jordan so aptly noted. Once the warrants were signed
on December 21, 1993, to prevent publicity, Petitioner took
the warrants with her back to Peach County, and secured
them in her office late that evening. The next day, December
22, 1993, Judge Jordan called Petitioner and asked her to
hold the warrants so that she could call the Attorney
General's office to find out which county's name should go
on the warrants, Hart or Peach. [FHT p. 361-362]. Petitioner
called the Attorney General's office and Judge Burke. [FHT
p. 362].
A74
(10.) Reason Warrants Held 7 Days Before
Deli To Sheriff
Besides the two (2) day delay caused by the issue
over the proper county name to be on the warrants, as related
earlier in paragraph 9. above, the Christmas Holidays were a
factor in the seven day delay from the time the warrants were
signed, December 21, 1993, and when they were delivered to
the Sheriff for execution. This Court can take judicial notice
of the fact that Christmas Eve, December 24, 1993, fell on a
Friday in 1993 and Christmas was on Saturday. As a result
of Christmas falling on a weekend, the following Monday,
December 27, 1993, was also a holiday. The next business
day was Tuesday, December 28, 1993. Also, Petitioner did
not want to interfere with the Commissioners’ Christmas
holidays, so she waited uritil December 28, 1993, to deliver
the warrants to the Sheriff's Department. [FHT p. 363]. This
deference shown the County Commissioners by Petitioner is
inconsistent with the notion that she sought the warrants out
of animosity for the commissioners or in retaliation for the
September 24, 1993, threat to reduce her salary, as the
Commission would have this Court believe.
(11.) Both Petitioner And Magistrate Court
canyon
Petitioner was in the unique position of being both
victim of a crime, with its concomitant responsibilities as lay
prosecutor, and the holder of a judicial office against whom
she believed a criminal offense had been committed. [FHT
p. 355]. O.C.G.A. Section 16-10-97 makes it a crime to
endeavor to intimidate or impede by any threatening letter or
communication any court of any county or a court officer
which arises out of or is related to the performance of the
A75
court officer's official duties, whether the proscribed activity
occurs while the court officer is actively engaged of the
matter giving rise to the offense or whether the
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